Heritage: protecting the historic environment in Wales

Protecting historic Wales

6 December 2017

Bill Zajac explains how ground-breaking legislation is helping to protect the historic environment in Wales

The Historic Environment (Wales) Act 2016 became law on 21 March last year, and the greater part of the legislation – the first enacted specifically for the Welsh historic environment – is now in force.

Several of the act’s provisions mark significant steps in the protection and management of the historic environment. For instance, Wales’s historic environment records have been placed on a secure, statutory footing. Those records, freely available online provide local planning authorities, developers and others with the information needed to make sound management decisions, as well as promoting public understanding of the historic environment. Their importance is underscored by statutory guidance, Historic Environment Records in Wales: Compilation and Use for certain public bodies.

The legislation established a statutory list of historic place names, a first for the UK, if not the world. The list, which is publicly accessible online and through the historic environment records will raise public awareness of historic place names and encourage their continued use by public bodies and private individuals. The guidance includes instructions for the relevant public bodies on using the list to name and rename developments, streets and properties.

Consultation

Wales has led the way in requiring formal consultation with owners and occupiers before the scheduling of a monument or the listing of a building. However, many people feared that open consultation would place historic assets at risk, as unscrupulous individuals might deliberately damage or destroy them to prevent designation. Interim protection was therefore introduced to safeguard an asset as if it were already scheduled or listed during the consultation period.

Owners and occupiers also have the right under certain circumstances to ask for a review of a designation decision. Such a review will be conducted by the Planning Inspectorate.

Scheduled monuments

The 2016 act made important amendments to the Ancient Monuments and Archaeological Areas Act 1979, which provides the legal framework for the designation, protection and management of scheduled monuments in Wales. For example, it has expanded the definition of a monument to include any site that yields evidence of past human activity. This permits the designation and protection of a small number of nationally important early prehistoric sites – which are often nothing more than scatterings of artefacts – as well as battlefields and other sites devoid of structures or works.

There are more than 4,000 scheduled monuments in Wales and, for the most part, their owners manage them responsibly. However, every year a number are damaged by unauthorised works and other activities.
The Welsh government’s Historic Environment Service, Cadw, can now serve a temporary stop notice to halt unauthorised works; a complementary enforcement notice can require restoration, or, if that is impractical or undesirable, the alleviation of the effects of the unauthorised works.

A loophole in the 1979 act that allowed people to escape prosecution for damage by claiming ignorance of a scheduled monument’s location or status has also been closed. A defendant has to prove that all reasonable steps were taken to find out whether planned works or other activities would cause harm to such a monument.

Cadw’s online, map-based designated assets database, Cof Cymru makes it easy to obtain reliable information on scheduled monuments, listed buildings and other designated and registered assets.

Listed buildings

The 2016 act also made significant amendments to the Planning (Listed Buildings and Conservation Areas) Act 1990. The powers of local authorities to undertake urgent works have been broadened, so they can be used on any listed building if they do not unreasonably interfere with residential use. The legislation makes the costs of urgent works a local land charge and permits an authority to levy interest on any outstanding sums, the aim being to reduce the financial risk of urgent works for local authorities.

A temporary stop notice has been introduced for listed buildings. As with the comparable notice for scheduled monuments, this allows local planning authorities to halt unauthorised works immediately, and dovetails with the existing listed building enforcement notice.

Preservation notices

Measures for the creation of preservation notices are also contained in the 2016 act. These notices will give local authorities new tools to deal with listed buildings that have fallen into disrepair.

The legislation makes specific provision for civil sanctions to support the notices, which could allow fixed financial penalties to be imposed on owners who permit listed buildings to decay. Although the act defines a framework for preservation notices, including offences and appeals, further regulations are needed to bring these provisions into effect.

Historic parks and gardens

Wales has had a non-statutory register of historic parks and gardens since 1994. There are now nearly 400 registered sites, and they will be transferred to a statutory register when a programme of boundary review and notification of owners is completed next year. The statutory register will place no additional legal restrictions on historic parks and gardens, and changes will continue to be managed through the planning system.

Heritage partnerships

Heritage partnerships are voluntary agreements into which owners, consenting authorities and other interested parties can enter for the long-term management of scheduled monuments or listed buildings. Crucially, they can incorporate relevant consents for agreed works, so will be particularly attractive to owners of multiple assets who need to make frequent, and often repetitive, consent applications.

While the negotiation of an agreement will require an initial investment of time and resources, it will promote the consistent management of the assets and ultimately result in savings by eliminating recurrent applications. Since these agreements will last for several years, it is important that the regulations and guidance are well founded and practical. Cadw is therefore seeking partners for pilot schemes in 2018.

Complementary measures

From its earliest stages, the 2016 act has been central to an integrated body of measures to support the careful management of change, its ethos derived from Cadw’s Conservation Principles for the Sustainable Management of the Historic Environment in Wales.

Heritage impact statements

A central tenet of Conservation Principles is that decisions about the future of an historic asset must be based on a sound understanding of its significance.

Therefore, a heritage impact statement will be required for listed building and conservation area consent applications. Following a thorough but proportionate  evaluation of a building’s significance,the statement will include a structured assessment of the objective of proposed works, design and access considerations, where appropriate, and strategies to mitigate any impacts. The regulations came into force on 1 September, and new best-practice guidance, Heritage Impact Assessment in Wales, has been published to assist owners, agents and local planning authorities.

Planning policy

It was clear that changes made in the 2016 act would have to be reflected in Planning Policy Wales. This afforded an opportunity for a thorough revision of chapter 6, on the historic environment; after a public consultation, the revised chapter was issued in Planning Policy Wales 9 in November 2016.

The new Technical Advice Note (TAN) 24: The Historic Environment has also been released. This is the first TAN for the Welsh historic environment, and it covers all circumstances in which the planning system touches on the management of historic assets. It replaces Welsh Office circulars 60/96, 61/96 and 1/98 on the historic environment.

Best-practice guidance

Cadw is preparing best-practice guidance that can be freely downloaded from its website. Two titles likely to be of general interest are Managing Change to Listed Buildings in Wales, aimed principally at owners and agents, and Managing Listed Buildings at Risk in Wales, for local authorities. Work is under way on further guidance titles, including one on the management of scheduled monuments.

The future

The 2016 act and these supporting measures will give Wales a robust structure for the effective protection and responsive management of its precious historic environment. That in turn will furnish a stable foundation for the future development of coherent legislation and policy.

Bill Zajac is Legislation and Policy Officer at Cadw

Further information

Download a complete “Heritage: protecting the historic environment in Wales” PDF