New legislation in Wales to protect the historic environment
On 9 February, the Welsh Assembly passed the Historic Environment (Wales) Bill which is now in the four week post-stage 4 period of intimation (10 February – 8 March) in relation to the Assembly’s legislative competence in this area . The Bill was introduced following extensive engagement and consultation with a view to making important amendments to the two principal pieces of legislation – the Ancient Monuments and Archaeological Areas Act 1979, and the Planning (Listed Buildings and Conservation Areas) Act 1990 – while also introducing some stand-alone provisions. The objectives of the new measure are:
- to give more effective protection to listed buildings and scheduled ancient monuments;
- to improve the sustainable management of the historic environment; and
- to introduce greater transparency and accountability into decisions taken on the historic environment.
Further information is included in the Explanatory Memorandum and on the Cadw website. The latter provides links to drafts of the first group of publications planned to complement the Bill when it becomes law . The new legislation will provide extra protection for churches and ancient monuments in churchyards under powers to take urgent action to stop unauthorised work to historic sites and to prevent historic buildings from falling into disrepair.
Cytûn [Churches together in Wales] estimates that there are about 3000 listed places of worship in Wales, of which 214 are listed at Grade 1. The Church in Wales owns the lion’s share: two-thirds of its 1,352 churches in active use for worship and ministry are listed, while its six cathedrals and 141 other buildings are listed at Grade I and comprise 29 per cent of all Grade 1 listed buildings in Wales.
The Localism Act 2011 does not extend to Wales; and during the Stage 3 debate on the Bill an amendment was proposed to introduce statutory local lists: it was lost only on the casting vote of the Deputy Presiding Officer. Speaking against the amendment, Ken Skates, the Deputy Minister, referred three times to the Churches’ concerns regarding the amendment. He confirmed that the Minister for Communities and Tackling Poverty would be looking at the issue of ‘Community Assets’ in the next Assembly; and it was clear that there was cross-party support for this. A group of amendments on ecclesiastical exemption was also debated and lost. Again, Skates opposed them, emphasising the Draft Strategic Action Plan for Historic Places of Worship and drawing attention to the first meeting of the Welsh Places of Worship Forum in the previous week.
The National Assembly is about to go into pre-election mode; and, assuming that the Bill is not challenged in the Supreme Court and goes to Royal Assent, it will not be revisited during the current mandate. However, our suspicion is that it is not the end of the story.
 During this period, the Counsel General or the Attorney General may refer the question as to whether the Bill, or any provision of the Bill, would be within the Assembly’s legislative competence to the Supreme Court for decision (section 112 of the Government of Wales Act). Similarly, the Secretary of State for Wales may make an order prohibiting the Clerk of the Assembly from submitting the Bill for Royal Assent. An explanation of this stage can be found in the Guide to the Legislative Process.
 Planning Policy Wales, chapter 6 – ‘The Historic Environment’; Technical Advice Note 24: Historic Environment; Managing Change in World Heritage Sites in Wales; Managing Lists of Historic Assets of Special Local Interest in Wales; Managing Change to Listed Buildings in Wales; and Managing Historic Environment Records in Wales: Statutory Guidance