Historic Environment (Amendment) (Scotland) Act 2011

Part 1 — Amendment of the Historic Buildings and Ancient Monuments Act 1953

Recovery of grants for repair, maintenance and upkeep of certain property

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• (1) Section 4A of the 1953 Act (recovery of grants under section 4) is amended in accordance with this section.

• (2) In subsection (3), at the beginning, insert “ Subject to subsection (3A) below, ”.

• (3) After subsection (3) insert—

(3A) Where a condition referred to in subsection (3) above specifies, or makes provision for calculating, the amount recoverable in the event of a condition being contravened or not complied with, that amount is the amount recoverable under subsection (3) in respect of the contravention or failure to comply with the condition.

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• (4) In subsection (4), at the beginning, insert “ Subject to subsection (4A) below, ”.

• (5) After subsection (4) insert—

(4A) Where a condition referred to in subsection (3) above specifies, or makes provision for calculating, the amount recoverable in the event of a disposal by the grantee of the relevant interest, that amount is the amount recoverable under subsection (4) above in respect of the disposal.

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Part 2 — Modifications of the Ancient Monuments and Archaeological Areas Act 1979

Control of works affecting scheduled monuments

Control of works affecting scheduled monuments

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In section 2 of the 1979 Act (control of works affecting scheduled monuments)—

• (a) in paragraph (a) of subsection (3), the word “written” is repealed,

• (b) after that subsection insert—

(3A) If— (a) works to which this section applies have been executed without being authorised under this Part; and (b) the Scottish Ministers grant consent for the retention of the works, the works are authorised under this Part of this Act from the grant of the consent. (3B) References in this Act to scheduled monument consent include consent under subsection (3A) above.

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Defences

Offences under sections 2, 28 and 42: modification of defences

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• (1) The 1979 Act is amended in accordance with this section.

• (2) In section 2(8), for the words “prove that” substitute

show that, before executing, causing the execution of or, as the case may be, permitting the execution of the works— (a) he had taken all reasonable steps to find out whether there was a scheduled monument within the area affected by the works, and

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• (3) In section 28(1) (offence of damaging certain ancient monuments)—

• (a) for the word “lawful” substitute “ reasonable ”,

• (b) after “monument”, where it first occurs, insert “ shall be guilty of an offence if the person ”,

• (c) in paragraph (a), for the words “knowing that it is” substitute “ knew or ought to have known that it was ”,

• (d) in paragraph (b)—

• (i) for the word “intending” substitute “ intended ”,

• (ii) for the word “being” substitute “ was ”,

• (e) the words “shall be guilty of an offence” are repealed.

• (4) In section 42 (restrictions on use of metal detectors)—

• (a) in subsection (6) for the word “prove” substitute “ show ”,

• (b) in subsection (7)—

• (i) for the words “prove that he had taken all reasonable precautions” substitute

show that— (a) he had taken all reasonable steps

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• (ii) for the words “and did not believe that it was” substitute

; and (b) he did not know and had no reason to believe that that place was a protected place

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Fines

Fines: increases and duty of court in determining amount

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• (1) The 1979 Act is amended in accordance with this section.

• (2) In section 2 (control of works affecting scheduled monuments)—

• (a) in subsection (10) for “the statutory maximum” substitute “ £50,000 ”,

• (b) after that subsection insert—

(10A) In determining the amount of any fine to be imposed on a person under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

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• (3) In section 28 (offence of damaging certain ancient monuments)—

• (a) in subsection (4) for “the statutory maximum” substitute “ £50,000 ”,

• (b) after that subsection add—

(5) In determining the amount of any fine to be imposed on a person under this section, the court shall in particular have regard to any financial benefit which has accrued or appears likely to accrue to the person in consequence of the offence.

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Powers of entry

Powers of entry to inspect condition of scheduled monument

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In section 6(1) of the 1979 Act (powers of entry for inspection of scheduled monument with a view to ascertaining its condition), for “and” substitute “ ; and such power may, in particular, be exercised with a view to ascertaining— ”.

Works affecting scheduled monuments: enforcement

Works affecting scheduled monuments: enforcement

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• (1) After section 9 of the 1979 Act insert—