Tuesday, 5 May 2015

New law to protect Welsh heritage sites

(Pic : castlewales.com)

It seems like a while since the last one, but it's worth turning to the latest Bill which has been introduced to the National Assembly by Deputy Minister for Culture & Sport, Ken Skates (Lab, Clwyd South).

The Historic Environment Bill (previously called a Heritage Bill) – Bill (pdf), explanatory memorandum (pdf) – "makes important improvements" to the existing measures in place to protect and manage historical sites. The memorandum claims that Wales' historic environment supports up to 30,000 jobs and contributes up to £840million to the Welsh economy, also accounting for up to one fifth of all tourist spending.

Historical sites are described as "a precious resource, but a fragile one" due to the threat from accidental or deliberate damage, where even the smallest amount of damage can quickly destroy "a site that has survived for centuries, if not millennia".

Currently, there are two laws which set out how historical sites are managed and protected : the Ancient Monuments and Archaeological Areas Act 1979 and the Planning (Listed Buildings & Conservation Areas) Act 1990. Both laws have led to the the designation of 4,000 scheduled ancient monuments, 30,000 listed buildings and 523 conservation areas in Wales alone.

Most of the provisions of the Bill are amendments to the two Acts, with three key aims in mind :
  • Introduce greater transparency and accountability to decisions on historical sites.
  • Give more protection to listed monuments and buildings.
  • Enhance existing mechanisms to protect historical sites.

What's outlined in the Historic Environment Bill?

Ancient Monuments

The Bill amends the 1979 Act to:
  • Place a duty on Welsh Ministers to consult when adding or removing an ancient monument to/from the schedule (of ancient and historic monuments) and also places a duty on Welsh Ministers to maintain the schedule itself.
  • Grant monuments interim protection pending a decision on whether it's to be added or removed from the schedule.
  • Set out compensation arrangements for loss or damage caused during an interim protection where a subsequent decision has been made not to include the monument on the schedule.
  • Sets out the procedure for a review (requested by landowners) of a Minister's decision to include a monument on the schedule, which could take the form of a public inquiry, hearing or written representation.
  • Enable Welsh Ministers to make regulations to "simplify" the process for scheduled monument consents (SMCs). This will make it much easier and less bureaucratic to make "straightforward" alterations to scheduled monuments, such as replacing a broken fence. It will also enable retrospective SMCs to be granted after such works have been undertaken.
  • Give Welsh Ministers the power to refuse "repeat applications" (similar applications submitted within 2 years of the first) for SMCs, and also "discretion" rather than "duty" to hold a public inquiry on SMC applications (presumably with regard to straightforward alterations).
  • Enable Welsh Ministers to enter into a heritage partnership agreement (HPA) with landowners, interested groups, neighbours, site managers etc. which will enable the HPA to grant scheduled monument consents for works that repair, remove, make alterations to or make additions to a scheduled monument. More than one monument can be included in the agreement and terms for such agreements will be set out in regulations.
  • Give Welsh Ministers the power to issue enforcement notices or temporary stop orders for unauthorised works on a scheduled monument, which will set out measures and deadlines to restore damage to or mitigate its effects. It also gives officers with written authority from the Welsh Government the power of entry to determine whether enforcement notices should be issued.
  • Make it an offence not to comply with an enforcement notice, with those not complying being liable to a fine.
  • Restrict the use of metal detectors near scheduled monuments.
  • Place a duty on Welsh Ministers to maintain a register of historic gardens, parks, ornamental landscapes, cemeteries and recreational areas.
  • Extend the definition of "monument" to include places where there's evidence of human activity but no structures or works (i.e. battlefields, stone age sites) as they currently can't be scheduled monuments.

Listed Buildings

The Bill amends the 1990 Act to :
  • Generally extend the same measures outlined for scheduled historical monuments (above) to include listed buildings.
  • Relax the rules relating to certificates of immunity (COI - explained here) for listed buildings so they can be issued at any time. It means owners won't have to make a full planning application to get a COI and can still get guarantees their building won't be listed for a certain period of time in order to make developments viable.
  • Change the circumstances under which "urgent works" can be carried out to listed buildings, meaning urgent works (i.e roof repairs) can be carried out at any time as long as it doesn't impact its residential use (where applicable) - though owners/occupiers need to be given seven days notice. Local authorities will also have the power to recover costs for "urgent works".

Historic Environment Records & Advisory Panel

The Bill :
  • Places a duty on local authorities to maintain statutory historic environment record for their area. This record must include every :
    • listed building, scheduled monument and conservation area
    • battlefields of historical interest
    • historic parks and gardens
    • UNESCO world heritage site
    • any other site of historical interest
    • details of how the historical and archaeological development of the area has contributed to its present character
    • details and findings of archaeological investigations
  • States that the record itself must be publicly available free of charge, but gives local authorities the power to issue charges to recover the costs of certain services (like compiling a report based on information contained in the record).
  • Establishes an Advisory Panel for Welsh Historic Environment to provide expertise and strategic advice relating to the historic environment, such as : identifying sites of national significance, interpreting research and public engagement. The panel will prepare a three-year work programme, submitted to the Welsh Ministers for approval.


As is becoming something of a trope on here, I'll stick to the Welsh Government's preferred options.

The total cost of the Bill's provisions between 2016-17 and 2020-21 is ~£780,000 – working out at roughly £156,000 per year. Some £50,000 per year of that covers the costs of the advisory panel, and a further £80,000 per year covers the costs of statutory historical environment records (plus a one-off £4,000 bill to produce guidance) – so about 84% of the Bill's costs over the next five years are down to those two elements alone.

The only other significant cost is £48,400 between 2016-2018 to create the official register of historical gardens etc. The simplified procedures for scheduled monument consents will actually save a nominal sum of money.

"Protect"? Or "Makes life easier (for developers)"?

The reason landowners who destroyed part of Offa's Dyke in 2013 escaped prosecution
was that they "didn't know it was there". That will no longer be a defence under the Bill.
(Pic : Wales Online)
The next bit is going to be incredibly anoracky/anorackish, but it was good that the Bill was laid in front of the Assembly last Friday (May 1st, presumably due to the bank holiday) which will hopefully give AMs and their staff enough time to go through it in order to make informed contributions to debates. Usually, Bills are laid on the Monday, or even as the respective Minister is making the announcement, which doesn't give AMs enough time to react.

On the content of the Bill itself, it'll certainly make it harder for people who damage monuments (deliberately or unwittingly) to escape prosecution - the damage caused to Offa's Dyke in 2013 being a case in point.

However, I suspect conservation groups may be concerned that other provisions will make life a bit easier for developers and landowners, but more difficult for those who want to protect presently unscheduled monuments and unlisted buildings – in particular provisions relating to relaxation of rules on certificates of immunity.

Then there's the advisory panel. A few years ago, the Welsh Government floated the idea of merging the two public bodies responsible for the historical environment – Cadw and the Royal Commission on Ancient and Historical Monuments in Wales (RCAHMW). Cadw broadly acts as the "gatekeeper" – literally maintaining and managing historic properties - while the RCAHMW is the "record keeper", maintaining the paperwork.

The idea was shelved in January 2014 because of opposition from academics and conservation groups, as well as worries about the independence of the body as both would merge "into" the Welsh Government.

Personally-speaking, it was a good idea – the fewer public bodies competing on the same ground the better – though concerns about independence and centralisation are perfectly valid considering the Welsh Government's track record. An advisory panel would presumably be made up of the same people involved with Cadw and RCAHMW anyway, so I suppose it's a compromise between a full merger and maintaining two separate bodies. As far as I know a merger has been postponed rather than completely taken off the table.

Creating local authority historical records sounds like a good idea on paper, but I suspect the Welsh Government are underestimating the task  associated with compiling what could be a large amount of information. Most of it will already exist of course and will just need bringing together
(examples at this website).

It's good that battlefields and historical/ornamental gardens are now formally acknowledged as sites worthy of protection or registration. I doubt there's much that can be made from battlefields, but protecting gardens, cemeteries and alike is good news as their value is perhaps underestimated.


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