Rewriting History

Historic Environment Scotland (“HES”) is currently consulting on a new national policy document for the historic environment. It is anticipated that the Historic Environment Policy (“HEP”) will replace the current Historic Environment Scotland Policy Statement (“HESPS”) in spring 2019, and is intended to be a high level document which supports decision making that affects the historic environment.

Background

HES was established under the Historic Environment Scotland Act 2014 (the “2014 Act”) with a general function of “investigating, caring for and promoting Scotland’s historic environment”. HES was effectively an amalgamation of Historic Scotland and the Royal Commission on the Ancient and Historical Monuments of Scotland, set up as a non-departmental public body rather than a Scottish Government agency.

HES was fully functional, and had taken responsibility for the functions set out in the 2014 Act, in 2015. In 2016, it published the HESPS which was largely a restatement of the substance of the previous Scottish Historic Environment Policy (“SHEP”). The HESPS was published as an interim document while HES considered how it would undertake its operations and regulatory activities as a newly established body, with a view to a longer term amended or replacement policy document. It is intended that the HEP will be that longer term amended or replacement document.

The Historic Environment Policy

The HEP is intended to be a “high level, principles based document”. It therefore takes a very different approach to that taken in the SHEP and the HESPS, containing significantly less detail. However, HES has stated that much of the detail that would have been in these documents previously will now be contained in separate policy guidance.

New policy guidance will also be put in place alongside the new HEP, which is likely to mean a review, and either amendment or replacement, of the Managing Change series of documents. There will be further opportunities to comment on the content and format of this policy guidance.

Points to note from the consultation draft HEP, using some of the headings set out in the document:

• Understanding and Recognition: The HEP emphasises the importance of understanding cultural significance prior to decisions being made which affect the historic environment.Detailed policy guidance will hopefully provide more clarity on this matter but it may be that applicants for planning permission and listed building consent, for example, will need to demonstrate that they have undertaken adequate and appropriate research to understand the cultural significance of an asset and its surroundings.
• Managing Change: This section is probably of most interest to planning authorities and developers alike as it is directly relevant to applications for planning permission and listed building consent.It states that significant harm to assets and their context should be avoided but where detrimental impacts are unavoidable, these should be minimised and mitigation measures put in place.Although not part of the specific draft policies, the HEP also suggests that, where it is not possible to be confident about the impact on the historic environment, action may need to be avoided so as not to risk damage, i.e. applying the precautionary principle.The HEP also raises the prospect of monitoring being put in place to ensure that mitigation is implemented and that unintended or unforeseen consequences are identified.
• Working together: The HEP encourages dialogue and collaboration among the different interests and people affected by decisions about the historic environment.
• Delivery and monitoring: The HEP also suggests that decision makers should monitor the impact of decisions affecting the historic environment to learn lessons and improve subsequent decisions affecting the historic environment.

Comment

As noted above, the HEP takes a different approach compared to the SHEP and the HESPS. Due to its high level nature, it is unlikely to be of much assistance to decision makers on its own. The detailed policy guidance which has still to be produced and consulted upon will therefore be key to assisting decision makers when making decisions affecting the historic environment. Parties with an interest in the historic environment should therefore look out for future consultations on the draft policy guidance.

Historic assets are usually more expensive to manage and maintain, and often have a setting which is protected in policy. Many of our town centres and other areas which are in need of revitalisation contain a number of listed buildings, for example. There is often a difficult balance for decision makers to strike in encouraging sustainable economic and inclusive growth on the one hand while protecting the historic environment on the other. The HEP does not provide much, if any, guidance on this balance and it may be left to the policy guidance to provide assistance on addressing economic or other benefits which may arise from developments which affect the historic environment. Again, there will be many parties awaiting the draft policy guidance with interest.

The consultation on the draft HEP is open until midnight on Monday 3 December 2018 and the consultation information can be accessed here.