The Scheduled Monuments (Appeals) (Scotland) Regulations 2015

Made: 2nd June 2015

Laid before the Scottish Parliament: 4th June 2015

Coming into force: 1st October 2015

The Scottish Ministers make the following Regulations in exercise of the powers conferred by sections 1E, 3C, 4B(3), 4D, 9C(3A), 9CB and 23B of the Ancient Monuments and Archaeological Areas Act 1979[^f00001] and all other powers enabling them to do so.

PART 1 — Preliminary

Citation, commencement and application

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• (1) These Regulations may be cited as the Scheduled Monuments (Appeals) (Scotland) Regulations 2015 and come into force on 1st October 2015.

• (2) These Regulations, other than Parts 4 to 6, apply to appeals under—

• (a) section 4B(2) of the Act (appeal against refusal of, or conditional consent to, applications for scheduled monument consent or against refusal of approval required by a condition); and

• (b) section 4B(3) of the Act (appeal in default of decision on application for scheduled monument consent or for approval required by a condition).

• (3) These Regulations apply in accordance with regulation 15(6) to appeals under section 9C of the Act (appeal against scheduled monument enforcement notice) made in respect of a scheduled monument enforcement notice served on or after 1st October 2015.

• (4) These Regulations apply in accordance with regulation 18(4) to appeals under section 1C of the Act (appeal against inclusion etc. in schedule of monuments).

• (5) These Regulations apply in accordance with regulation 19 to applications referred to the Scottish Ministers following a direction under section 3B(1) of the Act (referral of certain applications to the Scottish Ministers).

Interpretation

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In these Regulations—

• “the Act” means the Ancient Monuments and Archaeological Areas Act 1979;

• “appellant” means the person making an appeal under section 1C, 4B or 9C of the Act, as the case may be;

• “application” means, in the case of an appeal, the application to which the appeal relates;

• “appointed person” subject to regulations 19 and 20, means a person appointed under paragraph 1 of Schedule 1A to the Act (determination of certain appeals by person appointed by the Scottish Ministers) to determine an appeal instead of the Scottish Ministers;

• “decision notice” means the notice given by Historic Environment Scotland under paragraph 3(4) of Schedule 1 to the Act (applications for scheduled monument consent) of the decision on the application to which the appeal relates;

• “hearing session” means a hearing held or to be held into matters specified in a procedure notice given under rule 1(1) of the Hearing Session Rules;

• “Hearing Session Rules” means the rules set out in Schedule 1;

• “Historic Environment Scotland’s response” has the meaning given in regulation 5(2)(a) or 16(2)(a), as the case may be;

• “inquiry session” means a local inquiry held or to be held under— section 23A of the Act (local inquiries); or paragraph 6 of Schedule 1A to the Act (determination of certain appeals by person appointed by the Scottish Ministers), into matters specified in a procedure notice given under rule 1(1) of the Inquiry Session Rules;

• “Inquiry Session Rules” means the rules set out in Schedule 2;

• “interested party” means— in the case of an appeal under section 1C of the Act any person (other than the appellant) who is the owner, tenant or occupier of the monument to which the appeal relates; in the case of an appeal under section 4B of the Act any person from whom Historic Environment Scotland received representations (which were not subsequently withdrawn) in connection with the application; in the case of an appeal under section 9C of the Act any person given notice of the appeal in accordance with regulation 17(1) and from whom representations were received (and not subsequently withdrawn); and in the case of an application referred to the Scottish Ministers following a direction under section 3B of the Act, any person from whom Historic Environment Scotland received representations (which were not subsequently withdrawn) in connection with the application;

• “person” includes authorities and other bodies;

• “procedure notice” means a notice given (whether separately or in combination) under regulation 12(1), rule 1(1) of the Hearing Session Rules or rule 1(1) of the Inquiry Session Rules;

• “rule” means a rule set out in Schedule 1 or 2 to these Regulations; and

• “specified matters” are in relation to a particular hearing session or inquiry session, those matters which are set out in the procedure notice.

PART 2 — Appeals under section 4B of the Act

Notice of appeal

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• (1) An appeal to the Scottish Ministers under section 4B of the Act is to be made by giving notice in writing in accordance with this regulation.

• (2) The period prescribed for the purposes of section 4B(3) of the Act is the period of two months after the validation date.

• (3) The notice of appeal must be served on the Scottish Ministers within the period of three months beginning with, in the case of an appeal under—

• (a) section 4B(2) of the Act, the date of the decision notice; and

• (b) section 4B(3) of the Act, the date of expiry of—

• (i) the period of two months after the validation date; or

• (ii) such longer period as may be agreed between the applicant and Historic Environment Scotland under section 4B(3) of the Act.

• (4) The notice of appeal (on a form obtained from the Scottish Ministers) must include—

• (a) the name and address of the appellant;

• (b) the date and the reference number assigned by Historic Environment Scotland to the application in respect of which the appeal is made;

• (c) the name and address of the representative of the appellant (if any) and whether any notice or other correspondence which is required by these Regulations to be sent to the appellant should be sent to the representative instead of the appellant;

• (d) a statement setting out full particulars of the appeal including a note of the matters which the appellant considers require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) mentioned in regulation 10(4) the appellant considers the appeal should be conducted; and

• (e) where the appeal is made under section 4B(2) of the Act, a copy of the decision notice.

• (5) Subject to paragraph (6)—

• (a) all matters which the appellant intends to raise in the appeal must be set out in the notice of appeal or in the documents which accompany the notice of appeal; and

• (b) all documents, materials and evidence which the appellant intends to rely on in the appeal must accompany the notice of appeal.

• (6) In addition to matters set out in the notice of appeal and documents which accompany the notice of appeal, the appellant may raise matters and submit further documents, materials or evidence only in accordance with and to the extent permitted by regulations 5, 6 and 12, the Hearing Session Rules and the Inquiry Session Rules.

• (7) An appeal under section 4B of the Act is not to be entertained by the Scottish Ministers unless it is accompanied by a certificate required under regulation 4.

• (8) In this regulation “validation date” means—

• (a) in the case of an application for scheduled monument consent, the date on which the last of the items or information required to be contained in or accompany the application in accordance with regulation 3 of the Scheduled Monument Consent Procedure (Scotland) Regulations 2015 is received by Historic Environment Scotland;

• (b) in the case of an application for the variation or discharge of conditions to which a scheduled monument consent is subject, the date on which the last of the items or information required to be contained in or accompany the application in accordance with regulation 4 of those Regulations is received by Historic Environment Scotland; and

• (c) in any other case, the date on which the application is received by Historic Environment Scotland.

Notice to owners

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• (1) The appellant is to give notice in the form set out in Part 1 of Schedule 3 to any person (other than the appellant) who at the beginning of the prescribed period is the owner of the monument to which the appeal relates.

• (2) Where the appellant is unable to give notice to every person (other than the appellant) who at the beginning of the prescribed period was the owner of the monument to which the appeal relates, the appellant must publish a notice in a local newspaper circulating in the locality in which the monument is situated.

• (3) Notice under paragraph (2) is to—

• (a) be in the form set out in Part 2 of Schedule 3; and

• (b) be published before the beginning of the prescribed period.

• (4) The appellant must issue a certificate stating, as appropriate—

• (a) that at the beginning of the prescribed period no person (other than the appellant) was the owner of the monument to which the appeal relates;

• (b) that the appellant has given notice to every person (other than the appellant) who at the beginning of the prescribed period was the owner of the monument to which the appeal relates; or

• (c) that the appellant is unable to give notice to every such person.

• (5) A certificate issued—

• (a) under paragraph (4)(b) or (c) must state the name of every person to whom notice was given and the address at and date on which such notice was given;

• (b) under paragraph (4)(c) must certify that—

• (i) the appellant has taken reasonable steps (specifying them) to ascertain the names and addresses of those persons to whom the applicant has been unable to give notice; and

• (ii) that a notice has been published in accordance with paragraph (2) (specifying the date and place of publication).

• (6) In this regulation “prescribed period” means the period of 21 days ending with the date on which notice of appeal is given to the Scottish Ministers under section 4B of the Act.

Intimation to Historic Environment Scotland

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• (1) The appellant must at the same time as giving the notice of appeal to the Scottish Ministers send to Historic Environment Scotland—

• (a) a copy of the notice of appeal;

• (b) a list of all documents, materials and evidence which the appellant intends to rely on in the appeal and which accompanied the notice of appeal in accordance with regulation 3(5)(b); and

• (c) a copy of all documents, materials and evidence specified on such list which the appellant has not already provided to Historic Environment Scotland in connection with the application to which the appeal relates.

• (2) Historic Environment Scotland must, not later than 21 days beginning with the date of receipt of notification of an appeal under paragraph (1), send to the Scottish Ministers and the appellant—

• (a) a note (“Historic Environment Scotland’s response”) of the matters which Historic Environment Scotland consider require to be taken into account in determining the appeal and by what, if any, procedure (or combination of procedures) mentioned in regulation 10(4) Historic Environment Scotland wish the appeal to be conducted;

• (b) a copy of the documents (other than those specified on the list mentioned in paragraph (1)(b)) which were before Historic Environment Scotland and which were taken into account in reaching their decision; and

• (c) the conditions (if any) which Historic Environment Scotland presently consider should be imposed in the event that the Scottish Ministers or the appointed person, as the case may be, decide that permission be granted.

• (3) The appellant may, within 14 days beginning with the date of receipt of Historic Environment Scotland’s response, send to the Scottish Ministers and Historic Environment Scotland—

• (a) comments on any matters raised in Historic Environment Scotland’s response which had not been raised in the decision notice; and

• (b) any documents, materials or evidence on which the appellant intends to rely in relation to such comments.

Notification to interested parties

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• (1) Historic Environment Scotland must not later than 14 days following notification of the appeal under regulation 5(1) give notice of the appeal to each interested party.

• (2) Notice under paragraph (1) is to—

• (a) state the name of the appellant;

• (b) in the case of an appeal under section 4B of the Act, include, a description of the works to which the appeal relates;

• (c) include—

• (i) the name of, or a brief description of, the monument to which the appeal relates; and

• (ii) the postal address of the monument, or if the monument in question has no postal address, a description of the location of the monument;

• (d) state that copies of any representations previously made to Historic Environment Scotland, other than representations which the interested party has asked to be treated as confidential, will be sent to the Scottish Ministers and the appellant and will be taken into consideration in the determination of the appeal;

• (e) state that further representations may be made to the Scottish Ministers and include information as to how any representations may be made and by what date they must be made; and

• (f) state how a copy of the notice of appeal and other documents related to the appeal may be inspected.

• (3) An interested party may, within 14 days beginning with the date on which notice is given under paragraph (1), make representations in respect of the appeal to the Scottish Ministers.

• (4) The Scottish Ministers are to send a copy of any representations received under paragraph (3) to the appellant and to Historic Environment Scotland and are to inform them how and by what date (being a date not less than 14 days after the date on which such copy is sent under this paragraph) they may make comments to the Scottish Ministers on such representations.

• (5) The appellant and Historic Environment Scotland may, on or before that date, make comments on such representations to the Scottish Ministers.

Publication of appeal documents

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• (1) Historic Environment Scotland must, in relation to an appeal, make copies of—

• (a) the notice of appeal;

• (b) Historic Environment Scotland’s response and any comments sent under regulation 5(3)(a);

• (c) the documents—

• (i) specified on the list mentioned in regulation 5(1)(b);

• (ii) sent in accordance with regulation 5(2)(b) and (3)(b);

• (d) any notice given under regulation 6(1); and

• (e) any representations or comments made under regulation 6(3) or (5),

available for inspection at an office of Historic Environment Scotland until such time as the appeal is determined.

• (2) Historic Environment Scotland are until such time as the appeal is determined to afford to any person who so requests the opportunity to inspect and, where practicable, take copies of any such documents (or any part thereof).

PART 3 — Procedure for determination

Determination without further procedure

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Where the appointed person considers that no further representations are, or information is, required to enable the appeal to be determined, the appointed person may determine the appeal without further procedure.

Opt-in notice to interested parties

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• (1) Where the appointed person does not determine the appeal without further procedure, the appointed person may (but is not required to) invite, by notice given in accordance with this regulation, any or all interested parties to confirm if they wish to participate in any further procedure.

• (2) The notice given under paragraph (1) is to—

• (a) state that if the interested party wishes to participate in any further procedure conducted in relation to the appeal they must send a notice (‘an opt-in notice’) to the appointed person informing the appointed person of that wish;

• (b) include information as to how the opt-in notice may be given and specify the date (being not less than 14 days after the date on which the notice under paragraph (1) is given) on or before which the opt-in notice must be given to the appointed person; and

• (c) inform the interested party that if they do not give an opt-in notice to the appointed person before that date they may lose the opportunity to participate in any further procedure.

• (3) Where notice is given under paragraph (1) any reference in regulations 11 and 13 and in the Hearing Session Rules and Inquiry Session Rules to an interested party is to be treated as including only those interested parties who have given an opt-in notice to the appointed person in accordance with this regulation.

• (4) In this regulation “opt-in notice” has the meaning given in paragraph (2)(a).

Decision as to further procedure

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• (1) Where the appointed person does not determine the appeal without further procedure, the appointed person may determine the manner in which the appeal is to be conducted.

• (2) The appointed person may determine at any stage of the appeal that further representations should be made or further information should be made available or provided to enable the appeal to be determined.

• (3) Where the appointed person so determines, the appeal or a stage of the appeal is to be conducted by one of, or by a combination of, the procedures mentioned in paragraph (4).

• (4) The procedures are—

• (a) by means of written submissions;

• (b) by the holding of one or more hearing sessions;

• (c) by the holding of one or more inquiry sessions;

• (d) by means of an inspection of the land to which the appeal relates.