Memorandum submitted by the Rollright
Trust
THE ROLLRIGHT
TRUST
The Rollright Trust is a charity set up in 1997
to manage the Rollright Stones complex of guardianship monuments,
an early Neolithic burial chamber, a stone circle and a standing
stone which straddle the Oxfordshire Warwickshire border on the
ridge of the Cotswold Hills. The Trust owns two of the three monuments,
the third being held by lease along with a good deal of surrounding
land which the Trust rents as a means of improving the amenity
and permissive access to the site.
The Trust manages the site in accordance with
a management plan that it developed itself and on which it consulted
widely before adopting it in 2001. It is in the process of beginning
to update the Plan.
The Trust relies on income form visitors for
day-to-day maintenance of the site and has received capital grants
from many bodies to make a variety of improvements in amenity
and disabled access. It receives no income from English Heritage,
though in the past they have paid for emergency repair to the
Stones including the removal of paint. The Trust has not entered
any formal management agreement with English Heritage. In the
past there have been some problems unsatisfactory works being
carried out by EH contractors without due notice, but in recent
years a very constructive mutually consultative relationship has
been developed between the Trust and EH.
ISSUES
The clauses on Guardianship, which have not
been updated (and if anything made even more restrictive) stand
in stark contrast to those on heritage asset designations and
consents where there are now much more elaborate mechanisms for
consultation and appeals to bring the legislation more into line
with modern concepts of public accountability.
As in the 1979 Act (following the pattern established
by previous Acts) the provisions for guardianship provide for
very extensive powers for the State with only very minor concessions
to the rights of owners and occupiers of property subject to deeds
of guardianship—which in some cases will have been acquired
as a land charge and may be quite antiquated. In effect the legislation
treats Guardianship to all intents and purposes as the same as
ownership, but this is not equitable when ownership and occupancy
do not go with it, especially as it is a land charge that runs
with the land. While the original owner/occupier might have wished
to wash his or her hands of a site, subsequent ones may not take
the same view.
The provisions do not formally recognise any
role for the National Trust or other charitable bodies who in
several cases are actually responsible for the maintenance and
management of guardianship monuments and have their own legal
charitable objects in doing so.
As compared with the 1979 Act, the Draft Heritage
Bill proposes to curtail the very limited residual rights of owners
and occupiers of guardianship sites even more because of the now
extremely limited (24 hour) notice required to be given to carry
out works.
The provisions do not provide for modern standards
of transparency or accountability on the public guardians of the
nation's most important heritage assets. The general requirement
on authorities to maintain, manage and protect guardianship structures
is not supported by any requirement on them to create, maintain,
implement and update a Conservation or Management Plan, nor to
report on performance to the Secretary of State or Welsh Minister.
Nor is there any requirement to consult with the owner/occupier
or other interested parties on the content of such plans, or to
respect the interests as owners so long as they do not interfere
with the primary conservation of the monument for public benefit.
The approach assumes that the State (ie bodies
exercising guardianship and their contractors) will always
automatically act in the best interests of conservation, without
regard for the possible existence of other points of view. There
is no requirement for any works to be in accordance with a properly
formulated management plan, nor any requirement to report on works
carried out. Other than excavation, owners and occupiers have
no formal right to object to or withhold consent for inappropriate
works—it is simply assumed that all works carried out by
the authorities (and their contractors) will, by definition, be
appropriate. Experience shows that this is not always the case,
and for such important sites a fail-safe of additional checks
and balances would clearly be prudent.
Despite the Government's avowed intention to
reduce activities covered by Crown Immunity, there is no provision
for the guardian being required to obtain any consent from an
independent authority for potentially damaging works, even including
the power to remove the asset to another place!! This is despite
the fact that local authorities at least are required to obtain
consent for works on non-guardianship heritage assets that they
own.
Where guardianship provisions do entail explicit
consents (to transfer guardianship to another authority and general
provisions for entry to land to carry out excavations) they are
vaguely worded and there is no provision either for the guardian
to appeal to the Secretary of State to override an unreasonably
obstructive owner or interested party withholding of consent,
or for the owner to object to works (other than excavation) being
carried out, or to allow access or charge entry fees.
POSSIBLE SOLUTIONS
Possible ways to rectify these flaws might include
the following:
1. The purpose of guardianship should be
more clearly defined, referring to the prime objective of long
term maintenance, management and protection of the special interest
of especially important heritage assets for the benefit of the
public.
2. The National Trust should be recognised
as a potential Guardian of heritage assets IF it wishes to be
case-by-case, together with other charities set up for the explicit
objective of conserving and managing heritage assets, subject
to EH and or local authority advice on their proven suitability
AND the willingness of the charity to carry the extra responsibility
entailed.
3. There should be a clearer basis of how
the functions of guardians should be handled with respect to management
agreements with owners and third parties.
4. Guardianship authorities should be required
to prepare and maintain a Conservation and Management Plan for
each guardianship asset, drawn up in consultation with the following
(if not the authority itself): the owner/occupier, the local authority,
English Heritage, the Secretary of State (or in Wales, the Minister),
anyone known to have relevant special knowledge of or use of the
site, Natural England, the local community and such other persons
as may seem appropriate.
5. Each Conservation and Management Plan
should last not less than three and not more than 10 years and
should be subject to approval by the Secretary of State, becoming
operative on a provisional basis from the point when submitted.
The Guardianship authority should be responsible for the updating
of the Plan, including fresh consultation, within at most two
years of the expiry of its projected time scale. Such plans need
not be restricted to only those parts of a heritage structure
or larger assets that are covered by the deed of guardianship,
but if so they must make it clear which parts of the heritage
structure are in guardianship and which are not, and what the
difference makes in terms of responsibilities.
6. The Secretary of State (or Welsh Minister)
should by Order specify minimum standards for the content of Conservation
and Management Plans, to include all aspects of how the powers
of guardianship will be implemented by the authority or its contractors.
7. There should be a requirement on guardianship
authorities to obtain the consent of the Secretary of State for
works that would otherwise require the consent of the local authority
or English Heritage, except where such works are authorised by
an approved Management Plan.
8. Where Guardianship authorities and the
Secretary of State do not own and occupy a guardianship structure
themselves, they should be under a statutory duty to consult with
and take account of the views of the owners and occupiers of the
structure on all matters relating to the execution of all the
authority's powers as guardian not already authorised by an approved
management plan.
9. There should be a requirement on the guardian
to report to the Secretary of State or Welsh Minister on their
performance against the objectives set out in the management plan
on a triennial or quinquennial basis—or as specified in
the Plan itself.
10. There should be a mechanism for the Secretary
of State to transfer of guardianship to another body should the
guardian be shown (including by owners or other interested parties)
to be failing to carry out its duties effectively, but only IF
an alternative arrangement would clearly be better.
11. The Secretary of State should be required
to maintain a public register of all assets in guardianship, to
include copies of conservation and management plans and reports.
12. Further detailed amendments to wording
are needed to deal with other detailed points noted below relating
to compulsory purchase and other acquisition, notice of access,
rights to object to proposed works and other matters.
DETAILED COMMENTS
ON PROPOSED
CLAUSES
164-169 Compulsory purchase of heritage
assets and easements other than for repair:
— Together these clauses provide for
compulsory purchase of heritage structures and guardianship assets
and surrounding areas for the benefit of the public.
— 164(2) does not permit compulsory
purchase of easements in relation to heritage assets that in guardianship
but not owned by the purchasing authority itself.
— Except in relation to easements (under
164(1) and (3)), none of these clauses state what the primary
purpose of compulsory purchase should be other than 166(2) which
only requires that it is "expedient to make provision for
the preservation of the registered heritage structure"—there
is no requirement for this to be an option of last resort when
other mechanisms for securing the preservation of the asset have
been sought and failed, or cannot reasonably be expected to succeed.
170 Ending of rights on compulsory purchased
land: there appears to be no option to decide by agreement what
rights may or may not be extinguished.
171 Acquisition of heritage structures and
associated rights by agreement:
— The purposes of acquiring an asset
(under 171 (1) (a)) as opposed to an easement to support its management
(under 171 (1) (b) and 171 (4)) are not spelt out.
174-175 These clauses provide for carrying
out preservation works to registered heritage assets and recovering
costs from owners:
— 175(3)(a) establishes that an owner
may appeal against having to pay for works amongst other things
on the grounds that they were unnecessary, but this only applies
to the requirement to pay for preservation works, not the actual
works themselves, and there is an obvious discrepancy that the
7 days' notice that the authority must give before doing the work
(under 174) is much shorter than the occupier's 28 days in which
to appeal against having to pay.
— It is not clear whether 174-5 could
apply to guardianship structures not in the ownership of the guardianship
authority, but 179 implies that all such responsibility passes
to the authority, yet there is no equivalent right for an owner
to challenge the need for any works (see below).
177-179 These clauses set out the basic
parameters of how heritage structures come into guardianship and
the powers of guardian authorities:
— There is no requirement to define
(or redefine) the extent of guardianship which is relevant fro
some older existing guardianship structures (like The Rollright
Stones) where the deed of guardianship is vague or where only
part of a registered heritage structure is actually covered by
the deed of guardianship—at Rollright arguably the stones,
but not the ground on which they stand.
177 Placing registered asset into guardianship:
— 177(2) limits the public bodies in
whom guardianship can be vested to the Secretary of State, English
Heritage and a local authority (Welsh Ministers and local authority
in Wales)—does NOT include either the National Trust or
other charitable bodies set up with the express objects of conserving
heritage assets, nor does this or any other clause recognise that
the powers of guardianship should be executed with due regard
to the charitable objects of such bodies where they are the owner.
— 177(7) allows anyone with an interest
in the asset to be a party to a deed of guardianship in addition
to the owner, occupier and public authority.
179 Functions of a guardian:
— 179(1), (2) and (3) The sweeping
duty of heritage bodies or local authorities to look after guardianship
sites in subsections (1) and (2) are only qualified in (3) as
being to do "such things as appear necessary for" maintenance,
control and management—ie more or less any arrangement—without
the owner or occupier having any say in the matter when the place
is not owned/occupied by the authority (for example this clause
allows the guardian to delegate all its powers to a third party
not involved in the original deed of guardianship, and controlled
only indirectly through a contract).
— 179(4) defines maintenance as including
fencing and any other works for repairing, covering and protecting,
while 179 (5) gives public authorities acting as Guardians unrestricted
powers of "examination", "opening it up",
"excavations" and "removal to preserve it"—unless
under 179(6) such process is contrary to the deed of guardianship,
or under 216 (3) the owner/occupier refuses consent.
— 179(7) gives unlimited right of access
"at any reasonable time" for the guardian authority
or anyone acting on its behalf to carry out any of the works allowed
above. This is only subject, (under section 218(1)) to 24 hours
notice (rather than the 14 days for "works", and 24
hours for "other purposes" required under section 44
of the 1979 Act), though 216(3) provides (as in sections 25 and
44 of the 1979 Act) that excavation can only be carried out with
the consent of anyone whose consent would otherwise be required—presumably
including the owner or occupier, but without any requirement to
give more than 24 hours' notice of access to the owner and occupier.
— There is no requirement for guardians
to report regularly to the Secretary of State on the exercise
of their duties under 179.
180-181 Transferring and terminating guardianship:
— 180(1) allows guardianship to be
transferred to another body as defined by 177 (2) but this does
not include NT or charities.
— under 180(2) any transfer requires
consent of "the persons who are for the time being immediately
affected by the operation of the guardianship deed" without
defining what "immediately affected by the operation"
might mean (eg would this include custodians employed by the original
guardianship body, or by another body under an agreement, or by
people who use the site for annual celebrations who fear they
might be curtailed?).
— 181 There is no power for the Secretary
of State to terminate, take over or transfer guardianship, or
make an alternative management agreement with the owner/occupier
if the functions of the guardian are not being satisfactorily
carried out.
— There is no power or right for the
owner or occupier who is bound by the deed of guardianship to
propose transferring guardianship to another public body, or terminating
it if for example the guardian is not carrying out its functions
properly or effectively.
182-184 The provisions for public access
to guardianship heritage structures appear to ignore any possible
interest that the private owner/occupier might have if it is not
in public ownership:
— 182(2) does not refer to either the
existence of any management plan or the interests of the owner
and occupier (if not the authority) as factors that should be
considered in deciding if public access is "appropriate or
practicable" under the general presumption in favour of access
set out in 182(1).
— The power to control times of public
access under 182 (3) and (4) makes no reference to the interest
of the owner/occupier in the matter.
— The power to charge for entry to
guardianship structures (182 (5) makes no reference to the interest
of the owner/occupier in the matter.
— Under 182(6) the power to exclude
unwanted persons does not automatically apply to the owner/occupier
or to the police (though the latter may have such powers under
other legislation to prevent criminal damage or public disorder).
— The power not allow public access
under 182 (8) does not require the authority to take account of
the possible interests of the owner/occupier.
— There is no requirement under section
183 for the guardianship authority or Secretary of State to consult
and take account of the views of the owner/occupier of the guardianship
heritage structure about regulations concerning public access.
— There is no requirement under section
184 for the guardianship authority or Secretary of State to consult
and take account of the views of the owner/occupier of the guardianship
heritage structure about provision of facilities for the public.
July 2008
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