Page 16 - The Building Conservation Directory 2013

1 6 t h e b u i l d i n g c o n s e r vat i o n d i r e c t o r y 2 0 1 3 T w e n t i e t h a N N i v e r s a r y e d i t i o n
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Professional servicesor an impact assessment and mitigation
strategy. Reports may also be required
from structural engineers, conservators
and ecologists (such as bat and other
protected species surveys), as well as from
archaeologists. WSIs (written schemes of
investigation) or archaeological specifications
may also be needed, for example if clearance
of overburden or excavation is proposed
for footings or underpinning. All this
underlines the need for proper professional
advice and means that the application can
take several months to put together.
Often preparatory clearance of
vegetation, investigative works or trials are
required to ensure sufficient knowledge
of the monument has been accumulated
before finalising the proposals, and these
preparatory works may require separate
SMCs in advance of the main application.
Once the application has been completed
and submitted, around four months
should be allowed for the approval process
(Mynors, p443) but there is no time limit
(one application lay dormant for almost five
years while the monument changed owners
and new proposals were discussed). Fast
track digital applications are also available
in Scotland but may be time-limited and
can result in a refusal if the proposals have
not been thoroughly discussed beforehand.
Professionally prepared proposals can be
processed in as little as two months.
The determining body does not have
to consult but, in practice, inspectors often
do notify neighbours and tenants, the local
authority and specialist bodies such as
the Council for British Archaeology, local
archaeological trusts, the Royal Commission
(in Scotland) and the Ancient Monuments
Society, before reaching a provisional decision.
The decision, together with any proposed
conditions, is communicated to the applicant
and must be agreed before SMC is formalised,
since there is no appeal after this except to
the High Court on a point of law. If agreement
cannot be reached at this point, a public
inquiry can be held, which can cause delay
and additional cost and, as Mynors notes, ‘very
few indeed are held’ (p444). The best approach
is to ensure that the proposals are fully
discussed beforehand.
Conditions
Conditions attached to SMC can specify
a time limit (otherwise five years) within
which the work must be commenced and by
whom, and include specific requirements.
These might include the need to notify the
authorities prior to commencement to enable
inspections, the approval of mortar mixes
and other materials, the need for excavations
or inspections of particular parts of the
work after safe access has been formed, and
the need for photographic recording and
archiving records of the work.
No work should be started until the
formal consent has been received and all
pre-conditions satisfied, and this has been
confirmed in writing by the determining
body. Even after works have commenced,
the determining body has extensive powers
of access, advice and ‘superintendence’
(Section 25) and architects should ensure
that required changes to specifications
are recorded to safeguard their liability.
Changes in the approved scheme that occur
after commencement, such as unforeseen
additional work of similar character, can
be granted a variation of consent to avoid
repeating the application process.
Where grants are being provided, the
conditions may also include a maintenance
plan usually based on quinquennial (five-
yearly) inspections and there will be public
access conditions.
In a few rare circumstances,
compensation may be claimed for
refusal of SMC or onerous conditions,
or if SMC is modified or revoked. If
unauthorised alterations are carried out
there is currently no legal redress short of
criminal conviction but in Scotland the
government has recently acquired powers
of enforcement similar to those for listed
buildings (under the Historic Environment
(Amendment)(Scotland) Act 2011).
Class Consents
The legislation provides for ten ‘Class
Consents’ or exemptions from the need to
obtain SMC (The Ancient Monuments (Class
Consents) Order 1994). The first of these
(Class 1) covers certain works of regular
agricultural, horticultural or forestry land
management although specific management
agreements under Section17 are increasingly
preferred as they provide more precision.
Class 4 allows machinery fixed to the
monument to be repaired or maintained
providing it does not result in material
alteration of the monument, and this is
increasingly important as more of our
industrial heritage is recognised.
One of the most important class consents
is Class 5, which permits urgent works in the
interests of health and safety, for example
if a monument is in imminent danger
of collapsing into a busy road. Under its
requirements only the minimum necessary
work should be carried out, and a letter
should be sent to the relevant determining
body ‘as soon as is reasonably practicable’
justifying the works. In practice, the earlier
the determining body is consulted the better,
ideally before the work is carried out.
Class 9 applies where works are grant-
aided by the determining bodies. Consent
can be granted under this class as part of
the grant offer (this is likely to be phased
out in Scotland), but parts of the works that
are grant-aided by other national grant-
making bodies such as the Heritage Lottery
Fund, Rural Development Programme, local
authorities or charities will still require SMC.
Works carried out by the determining
bodies themselves, for example on the 1,062
monuments they care for on behalf of the
nation under ownership or guardianship
arrangements,4 benefit from Class 6 consent
but still need written consent internally (one
determining body is currently investigating a
case of unauthorised works by its own works
department). Other monuments owned or
cared for by government departments such
as the MOD, or agencies such as the Forestry
Commission, require Scheduled Monument
Clearance (also referred to as SMC and still
referred to as Scheduled Monument Consent
in Scotland) from the determining bodies in
a process which is meant to exactly parallel
Scheduled Monument Consent, although
without the criminal sanctions.
Under the Planning Act 2008 a
development consent order can replace
the need for SMC for nationally significant
infrastructure projects affecting scheduled
monuments although the need for consent
prior to works and compliance with conditions
still apply (DCMS, Scheduled Monuments,
Section 2(27)).
Challenges
Unfortunately the act does not require owners
to look after their scheduled monuments. Even
Ruin of a 16th-century windmill and, below, the
interior of the mill which was converted to a dovecote
in the 18th century