New rights to appeal listing and scheduling of Scottish buildings and monuments introduced

The measures are included in the Historic Environment Scotland Act, which received Royal Assent this week. The legislation will also create a new body, Historic Environment Scotland; which will replace existing bodies Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS) and oversee the management and protection of Scottish heritage and historical sites.

Planning law expert Gary McGovern of Pinsent Masons, the law firm behind Out-Law.com, welcomed the passing of the act.

"Given the largely complementary nature of Historic Scotland and RCAHMS, merging the two to create a single, new lead body for the historic environment is eminently sensible and should facilitate a more holistic approach, as well as efficiencies in terms of resourcing," he said. "The act will also introduce a range of other very sensible measures to tidy up existing legislation and plug gaps which will be of interest to property owners and occupiers."

A listed building is one that has been placed on the Statutory List of Buildings of Special Architectural or Historic Interest. A listed building may not usually be demolished, extended or altered without special permission from the local planning authority; and owners of listed buildings are required to repair and maintain them in certain circumstances. A scheduled monument is an archaeological site or historic building given protection against unauthorised changes under a different legal regime.

Currently, owners of buildings and monuments given or about to be given listed or scheduled designation in error must apply to the courts for judicial review. However, this process is rarely successful and may only delay rather than prevent listing.

"Given that there are often several hundred proposed listings every year, the availability of a right of appeal is likely to be useful in practice," said McGovern. "In its financial impact assessment, the Scottish government projected that around 30-50 appeals per year could be expected once the changes came into force."

"It's not often that new rights of appeal are introduced, so this part of the act is of particular interest. Importantly, these new rights will be available for tenants and occupants of property as well as property owners," he said.

The act introduces new rights of appeal against both listing and scheduling of monuments, and against a decision to refuse scheduled monument consent. It also introduces a new measure which will allow certain elements or structures to be excluded and not treated as part of a building for the purposes of the listing.

"This will provide flexibility and mean, for instance, that later additions to buildings could be excluded to ensure the listing only covers the most important elements," McGovern said.

The new public body, Historic Environment Scotland, is expected to begin work in 2015. It is due to be established in two stages. A board will be appointed in April 2015 ahead of the transfer of full operational powers to the new body, which is due to take place in October 2015.

Scottish culture secretary Fiona Hyslop said that the new body would play a lead role in delivering Scotland's first strategy for the historic environment, ensuring that heritage is protected and promoted while providing real and increasing benefits to Scotland's people. Merging the work of Historic Scotland and the RCAHMS would "bring resources, skills and experiences together" while "simplifying procedures", she said.