‘Long overdue’ right of appeal against listing of a building in Scotland comes … – Out

Historic Environment Scotland (HES), the new non-departmental public body which combines the functions of Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland (RCAHMS), becomes fully operational on 1 October. At the same time changes to the processes for listed buildings, conservation areas and scheduled monuments set out in the Historic Environment Scotland Act will come into force, along with the introduction of new rights of appeal against certain HES decisions. There are transitional arrangements for designations or consent applications already under consideration on 1 October 2015.

Previously, the right to challenge the listing of buildings or scheduling of monuments was limited to requesting a review or bringing a judicial review challenge against the listing authority through the courts. Property and planning litigation expert Fiona MacGregor of Pinsent Masons, the law firm behind Out-Law.com, said that both of these options “presented a variety of concerns and issues: independence and transparency of the review process, the limited grounds of challenge and the time and cost involved in a judicial review, for example”.

“Against this background, a right of appeal is long overdue,” she said. “It ensures that Scotland protects our valuable historic environment whilst allowing the merits of listing decisions to be tested where necessary.”

“The listing of a building can have quite significant, wide-reaching impacts affecting not only future use but also potentially the value of the building and land subject to the listing. Whilst the vast majority of applications are prompted by a genuine desire to protect the asset in question, as anyone can propose a listing the door is open to a tactical proposal of a previously-ignored asset, intended to hamper an unpopular development,” she said.

“Although the appeal right does not apply to decisions prior to 1 October, each year a number of new listing proposals are received, with the result that both landowners and developers have to deal with issues arising from listing more frequently than one might think. In addition, existing listings can be subject to review and amendment, and future decisions to amend an entry in the list would be subject to the new appeal right. Minor or administrative changes to the property address could therefore potentially allow an appeal against the listing to be triggered,” she said.

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 can also be 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.

From 1 October, HES will take over amended powers in relation to the designation of listed buildings and scheduled monuments, and over amendments to existing designations. Among the notable changes is  a new formal power to deem an ‘object’ or ‘structure’ which is fixed to a listed building not part of that building for the purposes of the listing. It will also have the authority to deem any part of the building ‘not of special architectural or historic interest’. HES will also take over its predecessor bodies’ role as a statutory consultee in relation to listed building and conservation area consents.

“Although the introduction of new rights of appeal is one of the more immediately eye-catching elements, the Act and secondary legislation make a number of other important adjustments to the processes for the designation of sites and buildings by scheduling and listing respectively; and the consent regimes for scheduled monuments, listed buildings and conservation areas,” said planning law expert Gary McGovern of Pinsent Masons.

“For example, HES will be a statutory consultee in relation to listed building and conservation area consents, and in relation to environmental impact assessments, and the formal power to exclude structures and parts of buildings may allow works to be done on excluded parts of a listed building without the requirement for listed building consent.” he said.

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