1 Overview
We try as far as possible to engage, encourage and inform everyone who is subject to the Ancient Monuments and Archaeological Areas Act 1979, to ensure compliance with the legislation.
We will take enforcement action where a breach of the law arises. All enforcement action will be fair and reasonable, and proportionate to the breach. We record all enforcement action.
Find out more about how we pursue and enforce compliance with the Act in this guide.
Contact
For more information or if you have any questions, please contact us by telephone on 0131 668 8716 or email us at hmenquiries@hes.scot.
2 How we pursue compliance
To pursue compliance with the Ancient Monuments and Archaeological Areas Act 1979, Historic Environment Scotland may use any or all of the approaches below.
Discussion
We may discuss compliance as part of:
- seeking scheduled monument consent
- routine ongoing compliance checks
- site visits
- an investigation of reports of unauthorised works
Granting of scheduled monument consent
Compliance is ensured through the granting of scheduled monument consent, whether the consent is:
- granted
- refused
- reviewed
- varied
- suspended
- revoked
Advisory/warning letters
These are used where either:
- unauthorised works have taken place, but no damage has occurred to the monument
- conditions of consent have been breached without causing damage to the monument
The nature of the breach will be clearly set out in writing, and advice given on how to avoid future breaches.
Where action is required to prevent a breach of legislation, or to comply with consent conditions, a timeline will show by what date compliance must be achieved.
Notices
Historic Environment Scotland may serve a formal notice requiring a person or persons to stop works and, in some cases, to restore the monument or land to its former state.
This may take the form of either:
3 Enforcement notice
A scheduled monument enforcement notice allows for the reversal or making good of:
- unauthorised works to a scheduled monument
- works in breach of any condition attached to scheduled monument consent
The enforcement notice cannot take effect until at least 28 days after it has been served.
There is no time limit on Historic Environment Scotland taking scheduled monument enforcement action.
4 Stop notice
A stop notice can only be issued alongside an enforcement notice.
It will come into effect not less than 3 and not more than 28 days after it is issued, unless Historic Environment Scotland believes there are special reasons why it should take immediate effect.
5 Temporary stop notice
A temporary stop notice can be issued to put an immediate halt to unauthorised works.
Unlike a stop notice, it doesn’t require the issue of an enforcement notice. It can only be in force for a maximum of 28 days, during which time the most appropriate enforcement action should be decided upon and put in place.
Appropriate enforcement action following the issue of a temporary stop notice may include the below.
Direct action
Where an individual doesn’t fully comply with an enforcement notice, Historic Environment Scotland can enter the land and carry out any unfulfilled requirements of the enforcement notice.
We will seek to recover from those involved any costs we incur by taking direct action.
Reporting breaches
We may report breaches of the Ancient Monuments and Archaeological Areas Act 1979 to procurators fiscal, with a recommendation to prosecute those responsible.
Seeking an interdict
Where we suspect that unauthorised works are likely to take place in the future, we may seek a court order to prohibit such works.
Retrospective scheduled monument consent
It may sometimes be appropriate and in the best interests of the scheduled monument to retain certain unauthorised works. For example, it might cause more damage to the monument to try to undo work already done.
We will consider an application for retrospective scheduled monument consent in such cases.
6 Right of appeal against enforcement notices
Appeals against scheduled monument enforcement notices can be made to Scottish Ministers.
Section 9C of the Ancient Monuments and Archaeological Areas Act 1979, as amended by Schedule 2 of the Historic Environment Scotland Act 2014, sets out the grounds on which an individual can base an appeal against a scheduled monument enforcement notice.
The Scheduled Monuments (Appeals) (Scotland) Regulations 2015 set out how to appeal to Scottish Ministers, including:
- providing information in support of such appeals
- exchanging relevant information
- informing other parties
Appeals must be made before the date on which the enforcement notice takes effect (as specified in the notice). For example, if the enforcement notice will take effect on 1 June, the Directorate for Planning and Environmental Appeals must receive any appeal on or before 31 May.
Appeals against scheduled monument enforcement notices can be made by:
- the person on whom the notice is served
- any other person who has an interest in the monument to which it relates or the land in, on or under which it is situated
There is no third party right of appeal.
How to appeal
You must request an appeal form from:
The Scottish Government
Directorate for Planning and Environmental Appeals
Hadrian House
Callendar Business Park
Callendar Road
Falkirk
FK1 1XR
Telephone: 01324 696 400
Email: dpea@gov.scot
Website: www.dpea.scotland.gov.uk