The Historic Environment Scotland Act 2014 (Saving, Transitional and Consequential Provisions) Order 2015

EXPLANATORY NOTE

(This note is not part of the Order)

This Order makes saving, transitional and consequential provisions in relation to the commencement of various provisions of the Historic Environment Scotland Act 2014 (“the Act”).

From 1st October 2015 the duty under section 1 of the Ancient Monuments and Archaeological Areas Act 1979 (“the 1979 Act”) to compile and maintain a schedule of monuments (“the Schedule”) is transferred from the Scottish Ministers to Historic Environment Scotland. Article 2 provides that anything done, or treated as having been done, by the Scottish Ministers in compiling and maintaining the Schedule is treated (other than for the purposes of notification requirements under section 1(6) and appeals under section 1C of the 1979 Act) as if done by Historic Environment Scotland.

Article 3 saves the existing provisions of section 1(10)(b) to ensure that registration of certificates issued before 1st October 2015 remains competent after that date.

Section 2(5) of the 1979 Act currently specifically enables conditions to be imposed by the Scottish Ministers when granting scheduled monument consent to require an opportunity to be given to them to examine the monument and carry out excavations before works commence. Article 4 provides that where such opportunity has not been given to the Scottish Ministers before 1st October 2015 the condition is to be treated as requiring the opportunity to be given to Historic Environment Scotland.

Article 5 preserves the effect of notices given under section 2(9) of the 1979 Act in relation to the defence that works to a monument where urgently necessary in the interests of health and safety.

Part 1 of Schedule 1 to the 1979 Act contains provisions in relation to the handling and determination of applications for scheduled monument consent. Article 6 continues these provisions in effect for the purposes of any applications for such consent made before 1st October 2015 and which remain to be determined at that date.

Section 4 of the 1979 Act currently enables the Scottish Ministers to make directions to modify or revoke a scheduled monument consent. Part 2 of Schedule 1 to the 1979 Act contains related procedural provisions. Article 7 continues these provisions in effect for the purposes of directions given before 1st October 2015. The Act introduces powers to modify or revoke scheduled monument consent by order under new section 4A of the 1979 Act from that date.

Article 8 continues the current provisions of sections 9A to 9D, 9G, 9H and 9I of the 1979 Act in effect for the purposes of a scheduled monument enforcement notice served before 1st October 2015. Article 9 similarly continues the current provisions of sections 9K and 9N of the 1979 Act in effect in relation to temporary stop notices issued before that date.

From 1st October 2015 the respective duties under sections 32A and 32B of the 1979 Act to compile and maintain an inventory of gardens and designed landscapes and an inventory of battlefields is transferred from the Scottish Ministers to Historic Environment Scotland. Article 10 provides that anything done by the Scottish Ministers in compiling and maintaining such inventories is treated (other than for the purposes of notification requirements under section 32A(4) of the 1979 Act) as if done by Historic Environment Scotland. Where a duty to notify under that section arises in relation to any action of the Scottish Ministers, the duty to notify remains with the Scottish Ministers in terms of article 10(3).

Section 42(1) of the 1979 Act currently requires the consent of the Scottish Ministers for the use of a metal detector in a protected place situated in Scotland. From 1st October 2015 such consent will be required from Historic Environment Scotland. Article 11 ensures that consents which are in effect immediately before this change will continue to be effective and will be treated as if granted by Historic Environment Scotland.

Article 12 preserves the existing provisions of section 55 of the 1979 Act in relation to challenges to decisions by the Scottish Ministers on applications for scheduled monument consent and directions under section 4 of the 1979 Act made before 1st October 2015.

From 1st October 2015 the duty under section 1 of the Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997 (“the Listed Buildings Act”) to compile, or approve, lists of building of special architectural or historic interest is transferred from the Scottish Ministers to Historic Environment Scotland. Article 13 provides that anything done, or treated as having been done, by the Scottish Ministers in compiling or approving such lists is treated (other than for the purposes of notification requirements under section 1A(2) and appeals under section 5B of the 1979 Act) as if done by Historic Environment Scotland.

Section 3 of the Listed Buildings Act enables a planning authority to serve a building preservation notice in respect of a building which is not a listed building. The planning authority currently in this connection are to make a request to the Scottish Ministers to consider including the building on the list of listed buildings. After 1st October such a request is to be made to Historic Environment Scotland. If no decision has been made by the Scottish Ministers in respect of such a request made before that date article 14(1) provides that the request is to be treated as having been made to Historic Environment Scotland as that body will from that date be responsible for compilation of the list. Section 3(4)(b) provides that a building preservation notice shall cease to be in force if the planning authority are notified that the Scottish Ministers (after 1st October 2015, Historic Environment Scotland) do not intend to include the building on the list. Article 14(2) continues the current provisions of schedule 2 to the Listed Buildings Act, which relate to the consequences of a building preservation notice ceasing to have effect, in respect of such a notice where the Scottish Ministers give notice under section 3(4)(b) before 1st October 2015. Article 14(3)(a) continues in effect, after 1st October 2015, the duty imposed on the Scottish Ministers under section 3(6)(a) to notify owners and others of a decision taken by them not to include a building in a list. Where such notice is given by the Scottish Minister article 14(3)(b) continues the provisions of section 3(6)(b) in effect so the 12 month period referred to in that section will begin with the date of notification by the Scottish Ministers.

The responsibility for inclusion of a building on the list of listed buildings will from 1st October 2015 rest with Historic Environment Scotland. Section 5A(1) of the Listed Buildings Act enables an application to be made for a certificate that there is no intention to list a building. Article 15(1) treats any such application made to the Scottish Ministers before that date, and which has not been determined by that date, as if it is made to Historic Environment Scotland. Article 15(2) provides that where a certificate is issued by the Scottish Ministers under section 5A(1) before 1st October 2015 the 5 year period referred to in section 5A(2)(a) will still start on the date of issue of that certificate.

In terms of section 7(2)(b) and (c) of the Listed Buildings Act works for demolition of a listed building are authorised if notice of the proposal to execute the works is given to the Royal Commission on the Ancient and Historical Monuments of Scotland (“the Commission”) and either reasonable access has been given for the purposes of recording the building or a statement has been given under section 7(2)(c)(ii) of the Listed Buildings Act that such recording is not desired or has been completed. The functions of the Commission transfer to Historic Environment Scotland on 1st October 2015. Article 16 provides that if notice of the proposed demolition works is given to the Commission before that date section 7(2) applies as if notice has been given to Historic Environment Scotland. For the purposes of calculating the period of 3 months referred to in section 7(2)(c)(i) any period before 1st October 2015 during which reasonable access to the building was made available to the Commission is to be taken into account.

Article 17 continues the provisions of section 12 and 13(1) of the Listed Buildings Act, and any directions made under section 13(1), in effect in respect of applications for listed building consent or conservation area consent which are made before 1st October 2015. Article 18 continues the provisions of section 22 and 23 of the Listed Buildings Act in effect in respect of orders made under section 21 of the Listed Buildings Act before that date.

Article 19 provides that amendments to section 61(1) of the Listed Buildings Act do not affect the validity of the designation by the Scottish Ministers of an area as a conservation area and also provide that the current duty under section 62(2) and (4) to give notice of such a designation remains in place.

Article 20 amends the Ancient Monuments (Class Consents) (Scotland) Order 1996 so that it refers to Historic Environment Scotland. Article 21, made under section 38(4) of the Title Conditions (Scotland) Act 2003, designates Historic Environment Scotland as a conservation body for the purposes of that Act. Articles 22 and 23 respectively update references in the Transport and Works (Scotland) Act 2007 (Applications and Objections Procedure) Rules 2007 and the Disclosure (Persons engaged in the Investigation and Reporting of Crime or Sudden Deaths) (Scotland) Regulations 2011 to include references to Historic Environment Scotland.