Historic Environment (Wales) Act 2023

CHAPTER 3 E+W CONTROL OF WORKS AFFECTING SCHEDULED MONUMENTS

Authorisation of works E+W

11 Requirement for works to be authorised E+W

(1) A person must not carry out works to which this section applies, or cause or permit such works to be carried out, unless the works are authorised under this Chapter.

(2) This section applies to—

(a) works resulting in the demolition or destruction of, or any damage to, a scheduled monument;

(b) works for the purpose of removing or repairing a scheduled monument or any part of it, or of making any alterations or additions to the monument or any part of it;

(c) flooding or tipping operations on land in, on or under which a scheduled monument is situated.

Commencement Information

I1 S. 11 not in force at Royal Assent, see s. 212(2)

I2 S. 11 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

12 Authorisation of classes of works E+W

(1) Works to which section 11 applies are authorised if the works are within a class of works described in the table in Schedule 3.

(2) An authorisation under subsection (1) is subject to any exceptions or conditions specified in the table in relation to works of a particular class.

(3) The Welsh Ministers may direct that subsection (1) does not apply to any scheduled monument specified in the direction.

(4) A direction under subsection (3) does not take effect until notice of it has been served on every owner and occupier of the monument in question.

(5) Subsection (1) does not authorise works contrary to any exception or condition attached to a scheduled monument consent.

(6) An authorisation under subsection (1) has effect for the benefit of the monument and of all persons for the time being interested in the monument; but this is subject to any provision to the contrary in Schedule 3.

Commencement Information

I3 S. 12 not in force at Royal Assent, see s. 212(2)

I4 S. 12 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

13 Authorisation of works by scheduled monument consent E+W

(1) Works to which section 11 applies are authorised if—

(a) written consent to carry them out has been granted by the Welsh Ministers, and

(b) the works are carried out in accordance with the terms of the consent (including any conditions attached to it).

(2) Where—

(a) works to which section 11 applies have been carried out without being authorised under this Chapter, and

(b) the Welsh Ministers grant written consent for the works,

the works are authorised from the grant of the consent.

(3) Consent under subsection (1) or (2) is referred to in this Part as scheduled monument consent.

Commencement Information

I5 S. 13 not in force at Royal Assent, see s. 212(2)

I6 S. 13 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

Applications for scheduled monument consent E+W

14 Applying for scheduled monument consent E+W

(1) An application for scheduled monument consent must be made to the Welsh Ministers.

(2) An application must—

(a) identify the area of land to which it relates,

(b) describe the works to which it relates and the likely impact of the works on the monument, and

(c) contain any other information required by the Welsh Ministers.

(3) The Welsh Ministers may by regulations make provision about—

(a) the form and content of an application (which may include provision for using a form to be published or provided by the Welsh Ministers);

(b) how an application must be made;

(c) documents or other materials that must be included with an application.

(4) The Welsh Ministers may agree with an applicant that an application may be made otherwise than in accordance with subsection (2) or any provision made under subsection (3), if the application relates to works to which subsection (5) applies.

(5) This subsection applies to minor works carried out for the purpose of—

(a) removing or repairing a scheduled monument or any part of it, or

(b) making any alterations or additions to the monument.

(6) The Welsh Ministers may by regulations specify additional cases in which an application for scheduled monument consent may be made otherwise than in accordance with subsection (2) or any provision made under subsection (3); and the regulations may confer a discretion on the Welsh Ministers.

Commencement Information

I7 S. 14 not in force at Royal Assent, see s. 212(2)

I8 S. 14(1)(2), (4)-(6) in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

I9 S. 14(3) in force at 9.9.2024 by S.I. 2024/860, art. 2(1)(a)

15 Declarations of ownership in respect of monument E+W

(1) The Welsh Ministers may refuse to consider an application for scheduled monument consent unless one of the following declarations signed by or on behalf of the applicant is included with the application—

(a) a declaration that, at the beginning of the 21 days ending with the day of the application, no person other than the applicant was the owner of the monument,

(b) a declaration that the applicant has given notice to all the persons (other than the applicant) who, at the beginning of that period, were owners of the monument, of the things required by subsection (2) and any regulations under subsection (3),

(c) a declaration that the applicant—

(i) is unable to make a declaration under paragraph (a) or (b),

(ii) has given notice to such of the persons mentioned in paragraph (b) as are named in the declaration, of the things required by subsection (2) and any regulations under subsection (3), but

(iii) has been unable to find out the names and addresses of the rest of those persons, despite taking all reasonable steps to do so, or

(d) a declaration that the applicant—

(i) is unable to make a declaration under paragraph (a), and

(ii) has, despite taking all reasonable steps to do so, been unable to find out the names and addresses of any of the persons mentioned in paragraph (b).

(2) A notice for the purposes of subsection (1)(b) or (c)(ii) must—

(a) identify the monument to which it relates (including the address or location of the monument, and its name (if any)),

(b) state that an application for scheduled monument consent is to be made in relation to the monument,

(c) identify the person making the application (and, where the applicant is making an application on someone’s behalf, identify the other person), and

(d) describe the works to which the application relates.

(3) The Welsh Ministers may by regulations specify additional things which must be included in a notice.

(4) It is an offence for a person in purported compliance with this section—

(a) to make a declaration which the person knows to be false or misleading in a material respect, or

(b) to recklessly make a declaration which is false or misleading in a material respect.

(5) A person guilty of an offence under subsection (4) is liable on summary conviction to a fine not exceeding level 3 on the standard scale.

(6) In this section “owner” means—

(a) an owner of the freehold estate, or

(b) a tenant under a lease granted or extended for a fixed term that has at least 7 years left to run.

Modifications etc. (not altering text)

C1 S. 15 applied (with modifications) (4.11.2024) by S.I. 1992/3138, reg. 4A, Sch. 3 para. 1 (as inserted by The Applications for Scheduled Monument Consent (Wales) Regulations 2024 (S.I. 2024/932), regs. 1(2), 3(4)(6))

Commencement Information

I10 S. 15 not in force at Royal Assent, see s. 212(2)

I11 S. 15 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

16 Power to refuse to consider similar applications E+W

(1) The Welsh Ministers may refuse to consider an application for scheduled monument consent if—

(a) in the 2 years ending with the day the application is received, the Welsh Ministers have refused a similar application, and

(b) they consider that there has been no significant change in any relevant considerations since the similar application was refused.

(2) The Welsh Ministers may refuse to consider an application for scheduled monument consent if the application is made at a time when a similar application is under consideration.

(3) For the purposes of this section an application is similar to another application if (and only if) the Welsh Ministers consider that the works to which the applications relate are the same or substantially the same.

Commencement Information

I12 S. 16 not in force at Royal Assent, see s. 212(2)

I13 S. 16 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

Determining applications for scheduled monument consent E+W

17 Procedure for determining applications and effect of grant of consent E+W

(1) The Welsh Ministers may grant scheduled monument consent in respect of all or any part of the works to which an application relates.

(2) Before determining whether to grant scheduled monument consent on an application, the Welsh Ministers may do one or more of the following—

(a) cause a local inquiry to be held,

(b) give the applicant, and any other person, an opportunity to appear before and be heard by a person appointed by the Welsh Ministers, or

(c) give the applicant, and any other person, an opportunity to make written representations to a person appointed by the Welsh Ministers.

(3) Before determining whether to grant scheduled monument consent on an application, the Welsh Ministers must—

(a) in every case, consider any representations made by any person with respect to that application, and

(b) if an inquiry or hearing has been held or representations have been made in accordance with subsection (2)(c), consider the report of the person who held the inquiry or hearing or to whom the representations were made.

(4) The Welsh Ministers must serve notice of their decision with respect to the application on the applicant and on every person who has made representations with respect to the application.

(5) Scheduled monument consent has effect for the benefit of the monument and of all persons for the time being interested in the monument; but this is subject to the terms of the consent.

(6) Schedule 6 applies in relation to proceedings held under subsection (2).

Commencement Information

I14 S. 17 not in force at Royal Assent, see s. 212(2)

I15 S. 17 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

Grant of scheduled monument consent subject to conditions E+W

18 Power to grant consent subject to conditions E+W

(1) Scheduled monument consent may be granted subject to conditions.

(2) A condition may, for example—

(a) impose requirements with respect to the way in which or the persons by whom the works or any of the works are to be carried out;

(b) require that a person authorised by the Welsh Ministers be given an opportunity, before any works start, to examine the monument and its site and to carry out such excavations as the Welsh Ministers consider to be desirable for the purpose of archaeological investigation.

Commencement Information

I16 S. 18 not in force at Royal Assent, see s. 212(2)

I17 S. 18 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

19 Condition about period within which works must start E+W

(1) Scheduled monument consent must be granted subject to the condition that the works to which it relates must start before the end of a period which is specified in the condition and begins with the day the consent is granted.

(2) If consent is granted without the condition required by subsection (1), it is to be treated as having been granted subject to the condition that the works to which it relates must start within 5 years beginning with the day it was granted.

(3) This section does not apply to—

(a) scheduled monument consent which provides that it ceases to have effect at the end of a period specified in the consent (irrespective of whether any works have started),

(b) consent granted under section 13(2) (consent for works already carried out), or

(c) consent granted by a scheduled monument partnership agreement or a management agreement (see sections 25 and 51).

Commencement Information

I18 S. 19 not in force at Royal Assent, see s. 212(2)

I19 S. 19 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

Modification and revocation of scheduled monument consent E+W

20 Modification and revocation of consent E+W

(1) The Welsh Ministers may by order modify or revoke a scheduled monument consent to any extent.

(2) An order under this section may not be made in relation to—

(a) scheduled monument consent granted under section 13(2) (consent for works already carried out), or

(b) consent granted by a scheduled monument partnership agreement (see Chapter 4).

(3) Schedules 4 and 6 make provision in connection with orders under this section.

Commencement Information

I20 S. 20 not in force at Royal Assent, see s. 212(2)

I21 S. 20 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

Compensation E+W

21 Compensation for refusal of scheduled monument consent or grant of consent subject to conditions E+W

(1) This section applies where—

(a) an application for scheduled monument consent for works of a description mentioned in subsection (3) is refused, or

(b) an application for scheduled monument consent for works of such a description is granted subject to conditions.

(2) Any person who has an interest in the monument in question is entitled, on making a claim to the Welsh Ministers, to be paid compensation by them for any expenditure incurred or other loss or damage suffered by the person that is directly attributable to the effect of the decision on the application; but this is subject to the following provisions of this section.

(3) The works in respect of which compensation is payable under this section are—

(a) works which are reasonably necessary for carrying out any development for which planning permission—

(i) had been granted (otherwise than by a general development order) before the monument in question became a scheduled monument, and

(ii) was still effective when the application for scheduled monument consent was made,

(b) works constituting development for which planning permission is granted by a general development order,

(c) works which do not constitute development, and

(d) works which are reasonably necessary for the continuation of a use of the monument for a purpose for which it was in use immediately before the date of the application for scheduled monument consent (but ignoring any use in breach of any legal restrictions applying to the use of the monument).

(4) The compensation payable under this section in respect of works within subsection (3)(a) is limited to compensation for expenditure incurred or other loss or damage suffered by virtue of the fact that, in consequence of the Welsh Ministers’ decision, development for which the planning permission in question was granted could not be carried out without breaching section 11 (requirement for works to be authorised).

(5) A person is not entitled to compensation under this section in respect of any works within subsection (3)(b) or (c) if the works in question or any of them would or might result in the total or partial demolition or destruction of the monument.

(6) Where scheduled monument consent is granted subject to conditions, a person is not entitled to compensation under this section in respect of any works within subsection (3)(d) unless compliance with those conditions would in effect make it impossible to use the monument for the purpose for which it was in use before the date of the application.

(7) In assessing any compensation payable under this section for loss or damage consisting of depreciation of the value of an interest in land—

(a) it is to be assumed that any subsequent application for scheduled monument consent for works of a similar description would be determined in the same way, but

(b) in the case of a refusal of scheduled monument consent, if the Welsh Ministers, on refusing that consent, undertook to grant consent for other works affecting the monument in the event of an application being made, regard must be had to that undertaking.

(8) A claim for compensation under this section must be made in writing within 6 months beginning with the day of—

(a) the notice of refusal of scheduled monument consent, or

(b) the grant of scheduled monument consent.

(9) In this section “general development order” means a development order under section 59 of the Town and Country Planning Act 1990 (c. 8) that applies to all land in Wales (subject to any exceptions specified in the order).

Commencement Information

I22 S. 21 not in force at Royal Assent, see s. 212(2)

I23 S. 21 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

22 Recovery of compensation paid under section 21 on subsequent grant of consent E+W

(1) This section applies where—

(a) in a case where compensation under section 21 was paid in consequence of the refusal of scheduled monument consent, the Welsh Ministers subsequently grant scheduled monument consent for all or any of the works in respect of which the compensation was paid, and

(b) in a case where compensation under that section was paid in consequence of the grant of scheduled monument consent subject to conditions, the Welsh Ministers subsequently—

(i) modify the consent so that the conditions, or any of them, no longer apply to all or any of the works in respect of which the compensation was paid, or

(ii) grant a new consent for all or any of those works free from those conditions, or any of them.

(2) This section does not apply in any case unless the Welsh Ministers have served notice of the payment of compensation on the council of every county or county borough in which the monument is situated.

(3) In granting or modifying a scheduled monument consent in a case to which this section applies, the Welsh Ministers may do so on terms that no works in respect of which the compensation was paid are to be carried out under the consent until the recoverable amount has been repaid to the Welsh Ministers or secured to their satisfaction.

(4) In subsection (3) “recoverable amount” has the meaning given by section 23.

(5) A notice under subsection (2) must specify—

(a) the decision which gave rise to the entitlement to compensation,

(b) the monument affected by the decision, and

(c) the amount of the compensation.

(6) A notice under subsection (2) is a local land charge, and for the purposes of the Local Land Charges Act 1975 (c. 76) the council served with a notice under that subsection is to be treated as the originating authority as respects the charge.

Commencement Information

I24 S. 22 not in force at Royal Assent, see s. 212(2)

I25 S. 22 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

23 Determination of amount recoverable under section 22 E+W

(1) The “recoverable amount” for the purposes of section 22 means an amount specified by the Welsh Ministers in giving notice of their decision on the application for scheduled monument consent or in the order modifying the consent (as the case may be); but this is subject to subsection (3).

(2) Where a person who has an interest in a monument objects to the amount specified by the Welsh Ministers, the person may require the determination of the amount to be referred to the Upper Tribunal.

(3) Where a reference is made to the Upper Tribunal under subsection (2) the recoverable amount is the amount the Tribunal determines.

(4) The amount specified or determined as the recoverable amount under this section may be an amount representing all or any part of the compensation paid under section 21.

Commencement Information

I26 S. 23 not in force at Royal Assent, see s. 212(2)

I27 S. 23 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)

24 Compensation where works affecting a scheduled monument cease to be authorised E+W

(1) This section applies where works affecting a scheduled monument which were previously authorised under this Chapter cease to be authorised—

(a) because an authorisation under section 12 ceases to apply (whether because of an amendment to the table in Schedule 3 or a direction given under subsection (3) of that section),

(b) because of the modification or revocation of a scheduled monument consent by an order made under section 20, or

(c) in accordance with paragraph 2 of Schedule 4, because of the service of a notice of proposed modification or revocation of a scheduled monument consent under paragraph 1 of that Schedule.

(2) Any person who has an interest in the monument is entitled, on making a claim to the Welsh Ministers, to be paid compensation by them for—

(a) any expenditure incurred by the person in carrying out works which become abortive because further works cease to be authorised, or

(b) any other loss or damage suffered by the person which is directly attributable to that fact.

(3) A person is not entitled to compensation under this section in a case within subsection (1)(a) unless, on an application for scheduled monument consent for the works in question, consent is refused, or is granted subject to conditions other than those which previously applied by virtue of section 12.

(4) For the purposes of this section expenditure incurred in the preparation of plans for the purposes of any works, or on other similar matters preparatory to any works, is to be treated as expenditure incurred in carrying out the works.

(5) Subject to that, no compensation is payable under this section in respect of—

(a) works carried out before an authorisation under section 12 applied in relation to the works or before the scheduled monument consent in question was granted (as the case may be), or

(b) other loss or damage (other than loss or damage consisting of depreciation of the value of an interest in land) arising out of anything done or omitted to be done before that authorisation applied or that consent was granted.

(6) A claim for compensation under this section must be made in writing within 6 months beginning with the day the works cease to be authorised.

Commencement Information

I28 S. 24 not in force at Royal Assent, see s. 212(2)

I29 S. 24 in force at 4.11.2024 by S.I. 2024/860, art. 3(a)