Annex 5: Historic marine protected areas

1. Scottish Ministers have the power under Section 73(1) of the Marine (Scotland) Act 2010 (the 2010 Act) to designate historic marine protected areas for preserving marine historic assets located within the territorial seas of the United Kingdom adjacent to Scotland (out to 12 miles offshore). Historic Environment Scotland provides advice to the Scottish Government on designation of historic marine protected areas and advises on their management.

2. There are thousands of archaeological sites around the coasts and seas of Scotland. To be eligible for designation as a historic marine protected area, a site must meet the definition of marine historic asset and the criterion of national importance as set out in 2010 Act.

3. Designating historic marine protected areas recognises the cultural significance of marine historic assets at a national level. The cultural significance of a marine historic asset can be found in its artistic, archaeological, architectural, historic, traditional, aesthetic, scientific and/or social interest.

4. Designation of historic marine protected areas helps to preserve marine historic assets of national importance and to celebrate and communicate their heritage value so that everyone can appreciate these assets and act responsibly. Alongside other types of marine protected area (including nature conservation and demonstration and research), historic marine protected areas form part of a network of marine protected areas in the seas around Scotland that support the Scottish Government’s vision of ‘clean, healthy, safe, productive, biologically diverse marine coastal environments, managed to meet the longterm needs of nature and people’.

5. The 2010 Act requires that preservation objectives are set for a historic marine protected area. These guide management according to the specific needs of individual areas. Once designated, public authorities must take account of the preservation objectives in exercising their functions, including when taking decisions through planning permission, marine licensing and other regulatory processes. Scottish Ministers can also make marine conservation orders to further preservation objectives of an area – these can be used to prohibit, restrict or regulate activities that are specified in the order.

6. It is a criminal offence to intentionally or recklessly undertake a prohibited act in the protected area that significantly hinders the achievement of preservation objectives. Prohibited acts are removing, altering or disturbing a marine historic asset, or carrying out works or activities which damage or interfere with a marine historic asset or have a significant impact on the area. It is also an offence to contravene a marine conservation order. Exceptions to offences include where the act was authorised by a public authority (for example, through issuing of a marine license).

7. A marine historic asset is defined in Section 73(5) of the 2010 Act. The definition of a marine historic asset is broad. It is any of the following:

a) a vessel, vehicle or aircraft (or part of a vessel, vehicle or aircraft)

b) the remains of a vessel, vehicle or aircraft (or a part of such remains)

c) an object contained in or formerly contained in a vessel, vehicle or aircraft

d) a building or other structure (or a part of a building or structure)

e) a cave or excavation

f) a deposit or artefact (whether or not formerly part of a cargo of a ship) or any other thing which evidences, or groups of things which evidence, previous human activity

8. Designation orders state the marine historic assets within the area, the preservation objectives, and identify the area’s boundaries. A boundary may be determined by mean high water spring tide. It may include areas of seashore above mean high water spring tides that adjoin the area of sea.

9. Historic marine protected areas are normally the preferred type of designation for individual marine historic assets (such as a single shipwreck) or coherent groups of sites offshore, with scheduling or listing preferred for sites and places at the coast edge. The National Register of Historic Vessels (NRHV) provides an overview of the UK’s surviving historic vessels. Military maritime graves of individual wrecked vessels and all crashed military aircraft are designated under the Protection of Military Remains Act 1986, administered by the Ministry of Defence.

10. We give each historic marine protected area a record, which explains why a marine historic asset or group of assets is of national importance. Each record has a description, a statement of national importance and a map showing the boundaries of the area. The record sets out the preservation objectives for marine historic assets and the area, which explain what the designation aims to achieve. We also provide baseline information relating to survival and site condition, based on monitoring information we collect.

11. Each record provides operational advice on human activities that can hinder preservation objectives and which sea users and public authorities should take into account. We outline any regulations relevant to managing the area, such as marine conservation orders that might restrict or prohibit a particular activity.

12. This guidance is a framework for the advice we provide to Marine Scotland (part of the Scottish Government) on which marine historic assets merit designation and whether marine conservation orders are required. We assess marine historic assets on their own merits and make individual recommendations in each case. Scottish Ministers take the decision on designating historic marine protected areas.

13. We recommend preservation objectives based on the overarching policy principle of protection of marine historic assets in situ as the first option. In every case, we consider what is appropriate and practicable. Objectives may cover survival of marine historic assets, site condition, aspects relating to recovery and use of the marine historic assets and treatment of human remains.

14. We advise on the need for marine conservation orders to help preserve historic marine protected areas where there are no other available mechanisms to mitigate risk to marine historic assets, or where the available mechanisms are considered insufficient and a more focused regulatory regime is required.

15. When assessing a marine historic asset for designation, we consider whether its cultural significance is of national importance. We follow broadly the same approach to selection as we use for scheduling monuments of national importance, to ensure that we consider archaeological sites in the marine environment as we do sites on land. We examine the cultural significance of marine historic assets under the following headings.

• Intrinsic characteristics – how the physical remains of a marine historic asset contribute to our understanding of the past

• Contextual characteristics – how a marine historic asset relates to its surroundings and/or to our existing knowledge of the past

• Associative characteristics – how a marine historic asset relates to people, events and/or historic and social movements

16. The relationship of marine historic assets to the adjacent land can be complex and variable. Some elements may have been integral parts of adjacent landmasses, now submerged. Wrecked vessels and aircraft might have strong and far-reaching connections, or may have come from far afield and have only a passing association with the places where they have come to rest. We therefore consider the cultural significance of such assets beyond Scotland.

 17. The national importance of a marine historic asset is demonstrated in one or more of the following ways.

a) It makes a significant contribution to our understanding or appreciation of the past, or has the potential to do so. It may do so in itself, or as an example of a specific type of marine historic asset, or as a geographical group of related marine historic assets.

b) It retains structural, technical, decorative or other physical attributes, which make a significant contribution to our understanding or appreciation of the past. The remains can be upstanding fabric, evidence of buried archaeological structures and deposits, scatters of artefacts or a combination of these.

c) It is a rare example of a marine historic asset type when assessed against knowledge of the history and archaeology of Scotland, its seas, and their place in the wider world.

d) It is a particularly representative example of a type of marine historic asset when assessed against knowledge of the history and archaeology of Scotland, its seas, and their place in the wider world.

e) It has research potential which could significantly contribute to our understanding or appreciation of the past.

f) It makes a significant contribution to the marine historic environment and wider marine environment. This may include the relationship of the marine historic asset and its parts to other marine historic assets or features in its surrounding area.

g) It has significant associations with historical, traditional, social or artistic figures, events or movements that are of national importance.