The existing primary and subordinate legislation for the historic environment of Wales will provide the raw material for the consolidation project. If all proceeds according to plan, the outcome will be a bilingual restatement of that law in a new Act for Wales.
The primary legislation
The primary legislation that applies to Wales comprises Acts of the UK Parliament, Acts of the Senedd/National Assembly (from 2011 to present) and Measures of the National Assembly (from 2007 to 2011). Primary legislation often sets out the core principles of the law and provides for subordinate or secondary legislation to cover more detailed rules.
The main Acts
Two Acts currently furnish the principal primary legislation for the protection and management of the Welsh historic environment:
The Ancient Monuments and Archaeological Areas Act 1979 sets out the law governing the designation, protection and management of scheduled monuments. There are more than 4,200 scheduled monuments in Wales and they include archaeological sites and unoccupied historic ruins.
Under the provisions of the 1979 Act, the Welsh Ministers, acting through Cadw — the Welsh Government’s historic environment service, compile and maintain a Schedule of monuments of national importance. It is an offence to damage a scheduled monument or to undertake works to one without appropriate consent from the Welsh Ministers. The 1979 Act includes enforcement powers to halt unauthorised works and to require restoration or remediation of monuments after damage caused by such works.
The 1979 Act also regulates the acquisition and guardianship of ancient monuments by the Welsh Ministers or local authorities and public access to such monuments.
Amongst the amendments made by the 2016 Act are provisions for heritage partnership agreements, — voluntary agreements embodying consents for the long-term management of scheduled monuments — and a statutory register of historic parks, gardens and other designed landscapes and grounds.
Part II of the 1979 Act, which provides for the designation, investigation and protection of areas of archaeological importance, has never been used in Wales.
The Planning (Listed Buildings and Conservation Areas) Act 1990 establishes the legal basis for the designation, protection and management of listed buildings in Wales. The Welsh Ministers, again acting through Cadw, compile lists of buildings of special architectural or historic interest; there are over 30,000 listed buildings in Wales.
Listed building consent is required for works that affect the character of a listed building. It is administered by local planning authorities and, in some cases, the Welsh Ministers. Unauthorised works constitute an offence, and the 1990 Act provides enforcement powers to halt unauthorised works and to require the restoration or remediation of buildings damaged after such works. The Act also gives powers to local authorities to take action to preserve deteriorating listed buildings.
The 1990 Act was amended by the 2016 Act to allow for heritage partnership agreements for the long-term management of listed buildings through negotiated agreements including consents.
In addition, the 1990 Act allows local planning authorities to designate areas of special architectural or historic interest as ‘conservation areas’; there are more than 500 across Wales. Authorities manage conservation areas with planning controls, but the legislation requires formal ‘conservation area consent’ for the demolition of an unlisted building in a conservation area in Wales. The 1990 Act also makes provision for grants for the enhancement or preservation of conservation areas or repairs to buildings in them.
A third Act amends the 1979 and 1990 Acts and introduces some stand-alone provisions for Wales:
In addition to its amendments to the 1979 and 1990 Acts, the Historic Environment (Wales) Act 2016 includes a few stand-alone provisions. One obliges the Welsh Ministers to compile and maintain a statutory list of historic place names in Wales — a duty discharged on their behalf by the Royal Commission on the Ancient and Historical Monuments of Wales. Another requires the Welsh Ministers to compile and keep up to date a historic environment record for each local authority area in Wales; the Welsh Archaeological Trusts perform this function for the Welsh Ministers. The Welsh Ministers must also issue statutory guidance for certain public bodies on how they may contribute to the historic environment records and use them in the discharge of their functions.
Other Acts, or relevant sections, may also be considered for consolidation. These include:
Much of the Historic Buildings and Ancient Monuments Act 1953 has already been repealed, but some provisions remain in force relating to powers for the Welsh Ministers to make grants and loans for the preservation of historic buildings, their contents or gardens or other lands of historic interest. Other provisions give the Welsh Ministers powers to acquire buildings of outstanding historic or architectural interest, their contents or adjoining land and accept endowments for their upkeep.
These provisions will be analysed during the consolidation project to determine whether some or all should be included in the new legislation. They may have been superseded by more general powers that the Welsh Ministers now exercise under the Government of Wales Act 2006 and other later legislation.
The subordinate legislation
Subordinate legislation (also referred to as secondary legislation) often provides the finer detail necessary to flesh out the primary statements of law found in Acts. It can take a variety of different forms: regulations, orders, rules and schemes, and can include statutory guidance and local orders.
At present, the relevant pieces of primary and subordinate legislation must be located and read together to obtain a full understanding of the law on a particular subject. Where appropriate, subordinate legislation will be incorporated into the new Act, so all of the pertinent law on a topic will be in one place. Subordinate legislation that requires frequent amendment, for instance, to reflect changing conditions, may not be suitable for inclusion.