Following on from our note regarding the implications of owning a listed building, we thought it would be of assistance to now consider the implications of having a scheduled monument on your land.
Scheduling is the process by which Historic Environment Scotland adds monuments to their list (schedule) of monuments which are of national importance. Scheduling is carried out under the Ancient Monuments and Archaeological Areas Act 1979. Each entry on the schedule is given a scheduled monument record which includes a description of what is scheduled and a map showing the scheduled area.
The objective behind scheduling is to preserve important monuments or sites, in their current condition, as much as possible. There are currently more than 8,000 scheduled monuments throughout Scotland from a variety of themes and periods.
Historic Environment Scotland assesses each monument on its own qualities, but for a monument to be considered of national importance, it must have cultural significance relating to its aesthetic, artistic, archaeological, historic, traditional, scientific or social merits. This significance can relate to its form, fabric or setting.
Having a scheduled monument on your land does not affect ownership of the land and does not provide any additional rights to the public. The scheduled monument remains the property of its owner. In addition, owners are not under any duty to maintain or improve the management of their sites though this is encouraged.
However, scheduling does affect what can be done within the scheduled area and consent is required from Historic Environment Scotland for most works once a monument becomes scheduled. ‘Work’ includes repairing, removing or demolishing a monument, forestry operations, planting trees and flooding operations.
Some works do not require consent as they have consent under the Ancient Monuments (Class Consents) (Scotland) Order 1996, for example, routine ploughing of a site if it has been ploughed for 10 years or more.
Permission is also required from the landowner and occupier of the land where the scheduled monument is situated.
It is an offence to carry out work, or allow work to be carried out, on a scheduled monument without first obtaining consent. Historic Environment Scotland can take action if consent is not obtained, ranging from an advisory letter to referral to the Court. An advisory or warning letter is used when either unauthorised works have taken place but there has been no damage to the scheduled monument or if conditions of consent have been breached without any damage to the monument. The nature of the breach and how to avoid future breaches will be detailed on this letter.
A notice can also be served in one of three forms:
- An enforcement notice will order the reversal of or make good unauthorised works or works in breach of a condition of consent;
- A stop notice can be served alongside an enforcement notice and will come into effect no less than three days and no more than 28 days after it has been issued; or
- A temporary stop notice which puts an immediate stop to any unauthorised works. Unlike a stop notice, this does not have to be served alongside an enforcement notice. This can be in force for a maximum of 28 days.
Where an enforcement notice is not complied with, Historic Environment Scotland can enter the land and carry out any unfulfilled requirements of the notice and recover the costs of doing so. There is currently no time limit on Historic Environment Scotland taking scheduled monument enforcement action.
In addition to the above, it is also illegal to use a metal detector on a scheduled monument without first obtaining consent. This type of consent is known as ‘Section 42 consent’.
It is vital that landowners inform everyone working on their land, such as contractors, that there is a scheduled monument including the extent of the ground.
In practice, if you are purchasing land, your solicitor will check whether there is a scheduled monument on the land during their routine checks. If you are selling land which contains a scheduled monument, it is helpful to inform the potential purchaser of this and arrange for scheduling documents to be passed to the new owner.