| Consultation
responses: Draft Heritage Protection Bill ( 2008) |
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Submission from ALGAO:England Leila Brosnan Dear Leila, DRAFT HERITAGE PROTECTION BILL. COMMENTS FROM THE ASSOCIATION OF LOCAL GOVERNMENT ARCHAEOLOGICAL OFFICERS FOR ENGLAND (ALGAO:ENGLAND) The Role
of ALGAO:England The range of interests of our members embraces all aspects of the historic environment including archaeology, buildings and the historic landscape. Of particular relevance to the draft Heritage Bill, ALGAO:England members are responsible for the management of all Historic Environment Records (HERs) and for the management of the 95% of the archaeological heritage which is not designated. General
Comment The draft Bill proposes the bringing together of currently separate protection regimes for a wide range of different heritage sites, structures and spaces. We welcome the opportunity this presents to simplify legislation and we note that government has stated that, in the course of these changes, there will be no weakening of the protection offered to any of these elements of the historic environment. However, given the wide range of types of heritage assets covered by the new legislation, and the merging of separate pieces of legislation embodying very different concepts, we consider that there are some important issues which need to be addressed before the draft Bill proceeds. 2 Heritage structures. Under the present ancient monuments legislation it is not possible to schedule sites that contain palaeo-environmental information. We understood that protection would be extended to cover these types of sites: will they be covered by paragraph 2g of the draft bill or by any other part of the definition in paragraph 2 (2). 4 Special interest. 'Special archaeological interest' is a new concept in legislation, and a significantly different definition from those currently in use. We are concerned to ensure that this is an appropriate term, and that the definition will be clear and robust. We feel that consultation and debate within the sector will be essential to achieve these objectives. We accept that 'interest' has been used successfully in current legislation as a basis for the designation of historic buildings, but feel that the terms 'significance' or 'importance' are more appropriate for archaeological sites and deposits. In compiling the criteria against which special archaeological interest is defined we recommend that consideration is given to building on the non-statutory criteria for scheduling published in PPG16. 21-22 Request for inclusion in the register. Where a request is made to English Heritage for the inclusion of a structure or open space in the register no timetable is specified for response. In order that a timely response is provided it is suggested that these sections of the draft legislation should specify a time within which a response must be received. 39-43 Certificate of no intention to register. Where a request is made to English Heritage for a certificate of no intention to register this is likely to precede a planning application to be considered by the local authority in which archaeology or another historic environment issue will need to be considered. It is requested that consideration is given to the practical application of this process in two respects:
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heritage assets. ii) There are a number of positive outcomes to this reform most noticeably:
iii) There are however a greater number of missed opportunities:-
iv) The Bill does seem to be creating two areas of uncertainty:
83 Publicity by local planning authorities. This section of the draft Bill appears to place responsibility for notification of owners of the registration of an asset on the local authority. This places an inappropriate burden on local authorities especially since English Heritage will have been in contact with the owners during registration and will therefore be in possession of ownership details. The double-handling of data also increases the potential for errors and could be confusing for the owner/occupier. 86 Heritage Asset Consent. Under the 1979 Ancient Monuments and Archaeological Areas Act consent is required for 'any works'. This reflects the fact that minor works outside the scope of the planning system, for example tree planting, can have a very damaging impact on archaeological sites, and is a clear statement of the scope of the Ancient Monuments legislation. Under section 86 of the Draft Bill consent will be required for works that affect the special interest of the registered heritage structure. In these circumstances who will determine whether works require consent? Will statutory guidance be published on this matter? No grounds for the potential refusal of Heritage Asset Consent are specified. We suggest that there should be a presumption against causing damage or harm to a registered structure, and a provision to refuse applications which are inadequately documented i.e. those for which there is insufficient information provided by the applicant to allow the impact of the proposal to be determined. This principal and process is already well established in the treatment of archaeological remains in the planning system, consistent with PPG16. Consideration should be given to allowing local planning authorities to recover the costs of processing HAC by charging a fee for processing applications. 89 Offences. While ignorance of the protected status of an archaeological site is currently a defence under the ancient monuments legislation the equivalent is not a defence under the Listed Buildings legislation. Extending the defence of ignorance in this way appears to be a weakening of the protection provided to buildings, and, in any event, such a defence is generally not acceptable in English law. It weakens the protection currently provided to Scheduled Monuments under the ancient monuments legislation and we would request that this defence is removed from the Draft Bill. 91 Penalties. The penalties as set out appear too slight to work effectively as a deterrent. 93 Class consents. The present Class Consents Order permits the continuing cultivation of Scheduled Monuments, a process that cumulatively destroys the monument itself. The White Paper preceding this Draft Bill indicated that this practice would no longer be permitted. We would therefore request that a class consent for cultivation (and other works included in the current Class Consent no 1) is not included in any class consents order that may be published under new legislation. 106 Grant or refusal of consent. 4 (a) At present there is a presumption in favour of the preservation of nationally important archaeological remains and their settings, whether scheduled or not (expressed in PPG16). This is an important protection against damaging development. The draft legislation proposes that local planning authorities 'must have special regard to the desirability of preserving the heritage structure ' etc. It will be important to define clearly the terms used here in order to maintain current levels of protection. 4 (b) We welcome the reference here to the need for local planning authorities to have regard to relevant information in the HER, thus ensuring that appropriate information is available before a decision is made on an application. Expert Advice to Local Planning Authorities. 5 (a) We also welcome the reference here to the need for the local planning authority to take expert advice. We would however strongly suggest that the nature of the expert advice is more clearly defined in the Bill or relevant statutory guidance to ensure that it is from appropriately qualified or accredited professionals within or otherwise advising the local planning authority. 110 Conditions. The current list of conditions in the draft bill does not contain the most frequently used condition relating to archaeology set out in DoE Planning Circular 11/95 (Condition 55). This condition is used to ensure that appropriate archaeological recording is commissioned by applicants for consent in order to mitigate the impact of the proposed development or other works on the archaeological remains present before the development proceeds. The wording of this condition is legally sound, can be applied to all aspects of the historic environment and is the most effective way of securing mitigation. We strongly recommend that this condition is included in the examples listed in section 110 of the draft Bill. 115 Review of decisions by the local planning authority. We question the appropriateness of this provision for the review of an officer decision by members ie without specialist advice. 144 Purchase notice. This provision may act as a significant disincentive for the refusal of HAC, especially in the case of archaeological monuments, the majority of which are not capable of beneficial use. 161 Metal detecting. We are not clear why consent for metal detecting - as opposed to all other consents - is reserved for English Heritage. We would like to know why such consents could not be determined by local planning authorities, who would be advised by appropriately qualified archaeologists. 210-14 Historic Environment Records. We are very pleased to see the new duties for local authorities in respect of Historic Environment Records set out in the draft Bill and fully support these provisions. We suggest however that the provision relating to the supply of 'all or any part' of the record to third parties (section 213 1 (b) ) is inappropriate and unnecessary given the extensive range of digital and hard-copy information that HERs comprise (a typical HER would have in the region of 20, 000+ records, 2000 photographs and many thousands of reports, site files and other paper records). It would therefore place an inappropriate burden on local authorities, perhaps leading to a proliferation of record systems. 215 Special Local Interest. The procedures for designating sites of Special Local Interest and recording them on HERs, outlined in Explanatory Notes paragraphs 257-8, appears to be unnecessarily cumbersome. We believe that more effective arrangements for designating sites of Special Local Interest and recording them on HERs should be provided in separate Guidance from DCMS on sites of Special Local Interest. Draft Statutory
Guidance on Historic Environment Records We also offer the following comments on the Guidance: 20. Intranet. We question the appropriateness of this paragraph. In particular, the definition of 'HER content' needs to be defined. HER 'monument' data should be available to all local authority staff via the internet such as on the Heritage Gateway. Relevant professional staff, such as planners, building control officers, highways engineers and education specialists would also benefit from access to some of the other data contained within HERs. However, many of these people are not within the county councils or national parks where HERs are based and therefore would not benefit from access via intranets, which usually do not allow access between local authorities. Whilst we support the principle of open access to HER data to all local authority staff, ALGAO:England would wish to see access to the complex range of electronic and hard-copy information contained within HERs governed by the evidence from user-needs surveys. Open access to all electronic data on HERs is also not practical as some is restricted by Data Protection legislation. 28. point 3, and clause 210 (2) (c) of the draft Bill. We suggest that 'archaeological interest' is replaced with 'historic environment interest'. Whilst we recognise that most of the non designated data within HERs is of archaeologist interest only, it is important to also recognise that a significant proportion of HER data does relates to historic landscapes and historic buildings. ALGAO:England also feels that it would be within the spirit and thrust of the Guidance and the draft Heritage Bill for them to recommend that HERs record the much broader range of information that the term 'historic environment' represents. Other issues The Setting of Designated Assets. Under current legislation and policy guidance the setting of a monument is not clearly defined. There needs to be a clear and robust definition of the term in order to prevent the environs of monuments from being destroyed by inappropriate, adjacent development. We look forward, as soon as is practicable, to the publication of draft guidance on setting. Resource implications for ALGAO:England Member Authorities and English Heritage Section 4:
Changes to the Consent Regime Section 6:
Changes to Historic Environment Records management We also would like assurance that English Heritage have sufficient resources to implement the Bill, and also undertake the necessary preparatory work before the Bill becomes law. New Planning
Policy Statement for the Historic Environment We also consider that the successful reform of PPG 16 will require the active engagement of ALGAO:England. This is because ALGAO:England members are currently responsible for the protection of the archaeological heritage via the planning system. Much of the relevant knowledge and understanding of the planning system with respect to archaeology therefore resides with ALGAO:England members and their teams and the untilisation of this expertise will be essential to ensure that the key protection that PPG 16 provides for the archaeological heritage is not reduced. Finally, we would like more information (either in the Bill or associated planning guidance) on the relationship between the proposed Heritage Assets Consent and planning consents. Many development proposals which will require HAC will also require planning permission and the relationship between the two processes is therefore of importance. This is especially the case with respect to archaeological designations, where Scheduled Monument Consent currently takes precedence over planning consent. Will this continue to be the case with HAC and planning permission ? Yours sincerely
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