Changes to policy & legislation affecting cultural heritage: the view from Scotland

FAME Open Meeting – 2020 Vision: a new era in British archaeology? Merchant Taylor’s Hall, York 2nd July 2010

Changes to planning policy & legislation affecting the cultural heritage of Scotland: ‘the new ‘toolkit’

• The ‘toolkit’ of cultural heritage legislation and planning policy changes in Scotland– The Historic Environment (Amendment) (Scotland)

Bill

– The Marine (Scotland) Act 2010

– SHEP (Scottish Historic Environment Policy)

– Scottish Planning Policy

Changes to planning policy & legislation affecting the cultural heritage of Scotland: context for change

• The context for the proposed changes – The Historic Environment Advisory Council for

Scotland (HEACS) report (2006): Report and recommendations on whether there is a need to review heritage protection legislation in Scotland

– HEACS recommend a major review of heritage protection legislation with a view to introducing new historic environment legislation

– Following a year of consultation with stakeholders, the Scottish Government responds, in Dec 2007

– The central HEACS recommendation is rejected but the green light is given to more limited reassessment, designed to target specific gaps and perceived weaknesses in existing legislation and planning policy in one single, simple Act

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Government objectives

• In line with broad Scottish Government aims of sustainable economic development & simplification, the objectives of the proposed new legislation are to:– Remove uncertainty

– Enhance ability to work with developers

– Align aspects of the listing and scheduling systems

– Contribute to planning improvement

– Increase deterrent penalties

– Improve capacity to deal with urgent threats

– Remove obstacles to the use of existing powers

Changes to planning policy & legislation affecting the cultural heritage of Scotland: specific reform targets

• In part these objectives stem from the HEACS report. Some perceived shortcomings of the current system included:– No power to schedule monuments at short notice

– It is only an offence to remove objects from SAMs without permission with metal detectors

– The continued use of pleas of ignorance in defence of unauthorised works on SAMs

– No right of appeal against decisions to schedule sites and list buildings

– The operation of the class consents system is inconsistently applied and affords insufficient protection in the provisions covering permitted development rights

Changes to planning policy & legislation affecting the cultural heritage of Scotland: further reform targets

• Some perceived potentially beneficial changes identified in the HEACS report:– Grading of scheduled sites

– Statutory protection for locally important archaeology

– Delegation of SMC to local authorities (cf LBC)

– Avoid scheduling & listing the same monument

– Provide statutory protection for HGDLs

– Give HS/SNH a statutory obligation to maintain a register of HGDLs (in line with England)

– Provide statutory protection for battlefields

Changes to planning policy & legislation affecting the cultural heritage of Scotland: planning reform targets

• In addition, the Scottish Government are seeking to address within the new legislation criticisms of the planning system, including that it is:– Too bureaucratic

– Slow to respond to commercial and economic needs

– Unpredictable in its outcomes

– Unresponsive to social and environmental concerns

– Lacking in transparency

Changes to planning policy & legislation affecting the cultural heritage of Scotland: the English experience

• Further context was provided by commensurate events in England– The Power of Place from 2002 which raised the

issue of the lack of fitness for purpose of a regulatory system for cultural heritage

– The Historic Environment: a force for our future, the government’s response, which provided a new vision

– And Protecting the historic environment: making the system work better which went out for consultation in 2003, proposing:

• simplifying the means of protection • more openness in the process• more flexibility in the process• more rigour in deciding what to protect

– The Heritage Protection Bill eventually emerged, proposing major legislative changes but despite promises…

Changes to planning policy & legislation affecting the cultural heritage of Scotland: ‘simplification’

• Existing Legislation• The Ancient Monuments &

Archaeological Areas Act 1979

• The Planning (Listed Buildings and Conservation Areas) (Scotland) Act 1997

• The Historic Buildings & Monuments Act 1953

• Proposed ‘Amending’ Legislation

• The Historic Environment (Amendment) (Scotland) Bill

Changes to planning policy & legislation affecting the cultural heritage of Scotland: parameters for drafting

• Historic Scotland were required to prepare a bill which:– Aligned with Government policy on sustainable

economic growth and simplification of the planning system

– Made it easier for the historic environment to be ‘managed’

– Imposed no new duties or burdens (including the cost of implementing it)

– Would be ready to be passed this year (2010)– Reflected ministerial views that Scheduling and

Listing should be seen as complementary, so that:• Listing should protect buildings and structures

we wish to continue having an active life• Scheduling should protect buildings, structures

and other remains as they have come down to us

Changes to planning policy & legislation affecting the cultural heritage of Scotland: the Bill - what’s new?

• What’s new?– Increased penalties for those damaging or destroying

scheduled sites & listed buildings (both up to £50K)– No defence of ignorance for damaging or destroying (&

now disturbing & metal detecting on) scheduled sites – Introduction of scheduled monument enforcement notices,

to stop unauthorised works on protected sites (currently only an interim interdict can achieve this end)

– and, since a right of appeal will also be introduced, introduction of a supporting system of stop and temporary stop notices (& similar notices for listed buildings)

– Power to enter land to investigate and, if necessary, excavate monuments at risk, with or without the consent of the owner

– Certificates of Immunity (from listing) – Capacity to impose fixed penalties on those in breach of

listed building enforcement notices

Changes to planning policy & legislation affecting the cultural heritage of Scotland: the Bill - what’s new?

• What else is new?– Clarity on the recoverable proportion of grant awards

(e.g. in the event of the sale of a building)– Provision to offer grants to any third party seeking to

undertake beneficial works on SAMs– Provision to offer financial assistance (grants and

loans) to any party promoting the development or understanding of the historic environment

– Clarification on section 54 on the 1979 Act re the ownership of finds

– A broader definition of “monument” (i.e. what can be protected) – to now encompass “any site comprising any thing, or group of things, that evidences previous human activity”

– but, plus ca change - scheduling and listing will remain separate processes, as will the respective consent processes

Changes to planning policy & legislation affecting the cultural heritage of Scotland: what’s not there?

• What’s not there?– Statutory requirement for local authorities to

maintain SMRs/HERs

– Statutory duty of care requirement on local authorities with respect to the historic environment

– Statutory protection for HGDLs & Battlefields

– Powers to provide interim protection for sites under consideration for scheduling or listing

– Removal of agricultural class consents for SAMs

– Inclusion of Article 4 Directions for all Conservation Areas Removal or reworking of ecclesiastical exemptions

– A clear & measurable definition of ‘setting’

Changes to planning policy & legislation affecting the cultural heritage of Scotland: associated changes

• The Bill should be seen as part of a wider suite of changes, including:– The establishment of A Joint Working Agreement

Between Historic Scotland and Planning Authorities in Relation to Statutory Casework and Consultation

– The managed removal of the duty on local authorities to notify Scottish Ministers of certain casework

– The replacement of The Memorandum of Guidance on Listed Buildings and Conservation Areas with planning circulars.

Changes to planning policy & legislation affecting the cultural heritage of Scotland: planning policy changes

• The Bill should also be viewed in tandem with changes to planning policy, in the form of:

• the SHEP Scottish Historic Environment Policy document produced by Historic Scotland (recently updated to the July 2009 version but classified as a ‘living draft’ and due to be revised again and (potentially) significantly shortened)

• the removal of Scottish Planning Policy 23 which only recently replaced NPPG 5 but has now been subsumed within the overarching Scottish Planning Policy document and ‘revised’, from a 15 page document to just over 3 pages.

Changes to planning policy & legislation affecting the cultural heritage of Scotland: the new SHEP

• The new SHEP differs from the previous (October 2008) version predominantly through inclusion of:– New sections covering designation and consents in

relation to Historic Battlefields and the establishment of an Inventory of nationally important battlefields

– A new chapter on the conservation of the historic environment by government bodies in Scotland

– A new annex indicating the criteria to be used in determining whether a historic battlefield is of national importance (and thus inclusion in the Inventory)

– Formal acknowledgement of the withdrawal (through Planning Circular 9 in 2009) and replacement of the Memorandum of Guidance

Changes to planning policy & legislation affecting the cultural heritage of Scotland: attitudes to the changes

• The “streamlined” SPP is now in force though concerns remain, including:– The relationship between SPP and the SHEP

– The long-term status of PAN 42 (still live)

– Much clearer definition of the key role of the local authorities, and of SMRs/HERs, in the protection of the historic environment

– Absence of any explicit reference to historic battlefields

– Absence of any reference to the new Marine (Scotland) Bill

– The absence of a clear definition of the historic environment and use of the latter phrase in places where ‘built environment’ is the phrase currently used

Changes to planning policy & legislation affecting the cultural heritage of Scotland: What next? The paperwork.

• What next – the paperwork?• The Historic Environment (Amendment) (Scotland) Bill

was introduced to Parliament on 4th May 2010

• The Bill has three stages to go through before being enacted

• The requirement that the new legislation should involve no new burdens, including the cost of implementation, suggests significant amendments during the progress of the bill through parliament are unlikely

• The next, short (sharp?) SHEP?

• A replacement for HEACS?

Changes to planning policy & legislation affecting the cultural heritage of Scotland: How are Scottish FAME members faring?

• In the context of the SGIfA meeting at the end of last year, a (very unscientific) ring around elicited a series of views from a range of different FAME members in Scotland which were cobbled together to provide a snapshot of the situation in Scotland.

• Augmented with some updates, a further (even more unscientific) snapshot was taken for the FAME meeting today

• The broad views expressed are summarised here on a non-attributable basis.

• Overall, Scottish FAME members view seemed to be that business activity showed some areas picking up (e.g. the renewables industry) but other business areas remaining sluggish or dormant (e.g. house building).

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Commercial activity

• Some specific comments, from a cross-section of Scottish FAME members, included:– Private sector work not showing clear signs of

picking up

– Dearth of capital projects

– Smaller-scale business activity very slow

– Patchy activity – e.g. renewable energy related works still relatively busy, housing virtually non-existent

– Smaller organisations especially feeling strain, though not necessarily sole traders

– Larger organisations seeing odd and unpredictable patterns of activity – deluge/drought/deluge/drought – with negative knock-ons for longer-term planning

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Commercial activity

• A point made repeatedly was that prices for work are being driven down, in some cases to levels which many members considered to be unsustainable in the long term.

• Some winning tender figures, when provided, were described by losing tenderers as “astonishing” and “laughable if it weren’t so serious”.

• Great concern existed about the overall impact of this trend on the long-term future of archaeology as a whole.

• There was, if not consensus, then a recurrent view that we already grossly undervalue ourselves and that this transmits to prospective clients and society generally

• This will be further exacerbated by the driving down of prices

• Several people considered this to be due, to some degree, to a lack of control over standards

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Standards

• Amongst Scottish FAME members:• Concerns were expressed over the standards of some

contractors, though a rather jaundiced view emerged of the likely efficacy of establishing barriers through accreditation

• Concerns over standards of monitoring agencies too, though not in the specific context of the recession (concerns over consistency have existed for some time)

• One consistent criticism is that very little work is actively monitored (apart from high profile projects) which some respondents felt was allowing poor practice to take place (driven by unreasonably low prices)

• Of much greater concern – perhaps the single greatest concern – is the long-term future of archaeological advice within planning authorities. The forthcoming and much trumpeted spending cuts are viewed with alarm and trepidation.

• There is already concern at the apparent trend to appoint lead or sole archaeologists at relatively junior levels within local authorities and further concern that many of the more experienced practitioners are now more likely to retire early and in the foreseeable future.

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Other themes & issues

• Diversification (more focus on less immediately commercial areas – backlog projects, HLF projects, research)

• Retention of best skills and experience• Training• Community archaeology• Loss of connection with “real” archaeological values –

several respondents felt commercial archaeologists had become disconnected from their “roots” – very little outreach, very little engagement with academic archaeology

• Some suggestion that the recession was, in certain cases, having a positive effect by forcing individuals to reconsider why they’ve been doing what they’ve been doing

Changes to planning policy & legislation affecting the cultural heritage of Scotland: Prognosis

• Looking forward, the view from a cross section of Scottish FAME members, ranged from positive, to resilient, to deeply concerned.

• Suggestions of the future landscape included:– Increased fragmentation and a proliferation of sole

traders (which will place even greater pressure on the market & pricing)

– A need for more and more explicit engagement with the public (though this was by no means a shared view across the people consulted)

– Greater flexibility and adaptability will be necessary

– “Schedule Scotland, retain one inspector to monitor it and the rest of us can go and work for Tesco”