Education, Lifelong Learning and Culture Committee

Meeting date: Wednesday, September 29, 2010

Official Report 457KB pdf

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Historic Environment (Amendment) (Scotland) Bill

I reconvene the meeting. The second item on our agenda is our final evidence-taking session on the Historic Environment (Amendment) (Scotland) Bill.

I am pleased to welcome Fiona Hyslop, the Minister for Culture and External Affairs, to the committee. She is joined by Lucy Blackburn, who is the bill director; Barbara Cummins, who is deputy chief inspector at Historic Scotland; and Emma Thomson, who is the principal legal officer with the Scottish Government. I thank them for attending the committee and thank the minister for her letter in advance of the meeting, which responds to some of the evidence that we have already taken.

Minister, are you keen to make a brief statement before we start?

Yes, if that is okay. I am pleased to be able to talk to you about the Historic Environment (Amendment) (Scotland) Bill. I will take the opportunity to comment on the overall policy aims that underpin the bill and to touch on some of the provisions in it that achieve those aims.

I stress that we should recognise the importance of our historic environment and its contribution to Scotland. It not only contributes fundamentally to our sense of place and our cultural identity but provides a wide range of employment opportunities, contributes significantly to the national economy and provides the setting for Scotland as an attractive place to invest in, visit, work and live. Only this morning, I was pleased to visit a world heritage education conference that is taking place at New Lanark.

I am keen to ensure that the regulatory authorities have the appropriate legislative tools to help them to manage our rich national asset sustainably. The Government’s aims in introducing the bill are threefold. First, we aim to improve the management and protection of our unique historic environment by addressing specific gaps and weaknesses in the current legislative framework that were identified during a year-long stakeholder engagement in 2007. Secondly, we aim to avoid introducing significant burdens or duties on local or central Government, owners of assets, business or members of the public. Thirdly, in the challenging economic climate, we aim to keep the implementation costs low.

The bill will help to achieve those aims by: harmonising aspects of the listing and scheduling systems where possible; harmonising aspects of historic environment legislation with the modernisation of planning; enhancing regulatory authorities’ ability to work with developers; enabling Government to work more creatively with partners; improving the capacity of regulatory authorities to deal with urgent threats; increasing the efficiency and effectiveness of deterrents; and clarifying the powers of the Scottish ministers to provide facilities and events at properties that are in their care. The bill is intended to make the existing system more efficient and will result in a much improved heritage protection framework in Scotland.

In response to the committee’s call for written evidence and during the recent evidence-gathering sessions, some organisations, while indicating support for the general principles of the bill, raised issues that are not addressed in it or that relate to how one or two provisions might work in practice. I hope to have the opportunity to address some of those issues during the course of the meeting, and I will touch on two of them briefly in this opening address.

Calls have been made for the bill to place a statutory duty on all public bodies to have special regard to the historic environment and for all planning authorities to have access to appropriate information and expert advice on the local historic environment in exercising their duties. Placing statutory duties on local authorities would be at odds with our new way of working with them as expressed through the Scottish Government’s concordat with the Convention of Scottish Local Authorities and the single outcome agreement process. It would also place new burdens on planning authorities in a difficult financial climate.

I am confident that there are better and more proportionate means to address the concerns that the Built Environment Forum Scotland expressed, for example by improved partnership working between Historic Scotland and local authorities, the application of sound policy guidance and the development of a robust administrative framework within which the regulatory authorities can better manage the historic environment.

I have also listened to the concerns expressed to the committee about the proposal to introduce a system of certificates of immunity from listing—in particular, the calls that have been made to amend the provision by limiting the types of individuals or organisations that would be eligible to apply for such certificates. One of the underlying aims of the bill is to harmonise historic environment legislation with the planning process where possible, and I am concerned that such an amendment would be at odds with the planning system, in which any individual or organisation can apply for planning permission regardless of who owns the property in question. However, I am interested to hear the committee’s views on that and any specific suggestions that members might have.

I know that the committee will have a number of questions for me, but I hope that that introduction was helpful.

It was, minister. I am sure that we will cover some of the points that you referred to in your opening statement.

What happened in Scone in the past couple of days showed the relevance and importance of the bill. If it seemed a little abstract to us over the past few weeks, its relevance has been brought home to us all following that awful accident.

Our attention has been drawn to the modification of defences under section 3. No longer will somebody be able to claim ignorance—that they did not know that something was an historic monument—as a defence. Will you explain why that is important? How confident are you that accurate information is available to everyone to ensure that they all know the importance of a particular part of the historic environment?

You raise an important point. I suspect that politicians and ministers might like to have the defence of ignorance at certain points, but it is an unusual defence to have and we discussed whether we should remove it completely. The original draft of the bill said that the defence of ignorance was not justifiable in any circumstance, but we received feedback that we should introduce a defence that the accused had taken “all reasonable steps” to find out whether there were any issues with scheduled monuments.

That brings us on to the second part of your question. The change is all very well, but it means that people have to have access to information to be able to take “all reasonable steps” to find out where the issues are. I notice that a number of witnesses have been complimentary about the availability of information, but the issue is how we ensure better access.

If the Parliament passes the bill, we plan to contact all owners of scheduled monuments once it is enacted to remind them that they own a scheduled monument, remind them of their responsibilities and explain what the new law means for them. That would be an initial action as a result of the bill, but there are others. Historic Scotland’s website provides access to information, but access is a recurrent theme and it is important that we ensure that information is available.

The defence of ignorance as it currently stands has rarely been used anyway, so section 3 will not result in a big change in practice. However, it makes the legislation similar to that for the marine environment and listed buildings, for which the defence of ignorance is not available.

Some of the evidence that the committee has received certainly said that some good and detailed information is available. However, other organisations raised concerns. In particular, the National Trust for Scotland said:

“Many scheduled monuments are ‘invisible’ to the untrained eye.”

Heads of Planning Scotland also raised significant concerns, and was extremely exercised about the matter in the committee last week. How do we get the balance right and ensure that it is not just the historic buildings and monuments that are obvious to us that are protected, and that people know about the ones that are not on everyone’s radar?

12:15

That is an important point. All 8,000-odd owners of scheduled monuments and sites would be directly contacted as a result of the bill. If there were any problems, they would be responsible. The information is already available, so it is a case of increasing awareness of and access to it rather than documenting it. We are working with stakeholder bodies such as the Scottish Rural Property and Business Association to help to raise awareness. We are taking steps to make people aware of existing sites, whether or not they are obvious.

What role does the Government envisage for the historic environment records scheme in relation to the issue?

We will work with COSLA and BEFS, with advice from the Royal Commission on the Ancient and Historical Monuments of Scotland, to manage a short project to provide clear information on the state of local environment records in Scotland and identify priorities for future work. The report will be presented to ministers and COSLA—remember that local authorities also have a great deal of responsibility in this area—around the end of the year. We will do that to ensure that there is better scope for sharing resources and records.

Local development control is important in that area—it is not just about national systems. That is where alignment with the planning system is important. Often, the same body—the local authority—deals with both planning and monuments. Policy statements already exist on records and local authority services in relation to Scottish planning policy. Obviously, one of the central features—although, interestingly, it was not referred to much in witness statements to the committee—is the Scottish historic environment policy, which comprehensively sets out a single statement of how we should manage not only the historic environment but records in particular. However, we are conscious that we need to improve the records and we are working with the key people to do that.

On that issue, are you confident that there will be sufficient resources to allow those records to be kept up to date? Local authorities are some of your key partners in all of this, and they might find it easier not to direct resources to this area when there are currently so many other pressures on their budgets.

One of the challenges in relation to the historic environment is the sharing of experience, expertise and resources. The historic environment is a strong candidate for cross-council co-operation to identify what resources can be shared in putting together records. The bill will help to pull together, on a more national basis, the various organisations that work on the historic environment. I am keen for that theme to be developed in other areas of heritage and the historic environment. We are aware of the vulnerability of resources—it is an important issue—but, in terms of the expertise in this area, the bill provides an opportunity to save resources by sharing resources.

I want to ask about enforcement and stop notices. The Scottish Property Federation raised concerns about temporary stop notices and questioned whether, as such notices could be issued without an enforcement notice, there might be issues about their robustness and consistency. It argued that temporary stop notices should be accompanied by detailed guidance. How will Historic Scotland ensure that temporary stop notices are used consistently?

It is important that they are used consistently. We should recognise that the bill will align the procedure for stop notices and temporary stop notices with the planning system. On the issue of enforcement, the bill will harmonise other guidance, particularly in relation to listed buildings. We are bringing together enforcement notices and stop notices on scheduled monuments and aligning that process with the one that already exists in the listed building system. I ask my Historic Scotland colleagues to say how they currently manage the use of stop and temporary stop notices for listed buildings to maintain consistency. I expect that to be similar to the process under the bill for scheduled monuments.

The powers are not extensively used. They are part of the toolkit that planning authorities have to use for enforcement. Stop notices are very much a last resort and temporary stop notices are an emergency power. They are part of the toolkit—some of the sticks in the system, rather than the carrot of doing things by co-operation. The powers are very much used as a last resort, and that is the intention for scheduled monuments, too. They are used at the final stage, when negotiation and co-operation have failed to work.

The Law Society of Scotland raised a couple of points about appeals against enforcement notices. It feels that, because the Scottish Government directorate for planning and environmental appeals has such a great wealth of information and experience on such matters, appeals should be made to it rather than to a sheriff. The Law Society also wants to know why the sheriff would have the power only to agree or disagree with a notice—to uphold or quash it—but not in any way to modify it or to consider ways in which it might be changed.

It is nice to know that the Law Society has such confidence in the planning appeals process. We are trying to align the procedures. The process is about ensuring that the due legal process is carried out, so the sheriff would not need to have detailed specialist knowledge of historic environment issues. It is about the process of law, rather than the evaluation of the historic environment. I suspect that you are inferring from the planning appeals system, but it is slightly different. In relation to planning applications, detailed knowledge is needed of the application, planning issues and the development that is involved. That is more of an evaluation that involves reporters and other aspects. I believe that there is almost a qualitative evaluation in planning appeals, although I will stand corrected if that is not the case. Under the bill, we are talking about consideration of whether due legal process has been carried out, and the sheriff obviously has responsibility for that. That is the difference. I will just check whether Barbara Cummins is comfortable with that.

I am.

I move on to the two new statutory inventories—one for gardens and designed landscape and one for battlefields. In relation to the gardens inventory, the Historic Houses Association Scotland has raised concerns about its compilation and purpose and about the obligation on and cost for owners, and whether inclusion on the inventory would oblige someone to maintain an area in a particular state.

On battlefields, we received evidence that the issue is fraught with difficulties and that it would be difficult to identify the exact site of some battlefields. The HHAS was concerned that inclusion on the inventory might result in

“unreasonable restriction on land use.”

Will you reassure the stakeholders? We have the letter that you gave us this morning, which goes into some detail on that, but will you give reassurance about the purpose of the inventories and say whether inclusion will place an obligation on owners?

Those are important points. We are trying to clarify what already happens, although the bill aims to extend the areas that the inventory covers. It is important to stress that inclusion on the inventory imposes no additional duties on owners in terms of maintenance, access or requiring consent for works. The bill will allow us to put the existing inventory on a statutory basis without additional cost. That will enable local authorities to pick up any changes to the inventory immediately without having to wait for the periodic updating of the development management regulations, as they do currently.

Returning to the convener’s point about record keeping, the inventory involves a just-in-time process, so that it can be referred to at any point. That is particularly relevant for some activities that are covered by the inventory, for example when what is effectively a planning process is involved for a garden design, landscape or battlefield. That is when having a record on the inventory would be helpful for the process.

Your second point was about identifying battleground sites. At the time of the consultation, that was one of the most popular areas for responses. I am not sure whether that reflects the bill as a whole and all its technical aspects, but people feel passionately about the subject, hence the high level of response.

The current Scottish historic environment policy for battlefields, which was published in July 2009, includes the following definition:

“To be included in the Inventory, a site must be of national importance and be capable of definition on a modern map ... Where nationally important sites cannot be adequately mapped, they will not be included in the Inventory.”

That provides clarity. If we just think that there is something at a certain place, or if it is vaguely described, that is not helpful to anybody.

On land use, there can be issues in areas where land is being cultivated for agricultural use, which might include ploughing. If there has been regular ploughing on a site for the previous six years, I think it is, nobody will stop the farmer doing that activity there just because the site is on the inventory. Experience will show that ploughing has gone on previously to a certain permitted depth. A commonsense approach is taken to that. The point is to develop a more statutory status for the inventory than has been the case.

Many of my colleagues in Central Scotland could tell you that the battle of Bothwell bridge is still being waged. I can get back to some of my constituents with up-to-date information. Thank you.

The ambition for the battlefields inventory is for the first wave of sites to be out for consultation some time before Christmas, so that the first wave of the inventory is in place around March or April next year. There will be full public consultation. There will be concerns, debates and discussions over what should be covered, and there will be an opportunity for those concerns to be considered properly and transparently.

That is helpful.

Members are no doubt all considering which battlefields are in their constituencies.

Different battle lines might be drawn up now.

I have a question regarding archaeology and the definition of monuments in that context. It has been suggested in written evidence that

“any site ... comprising any thing, or group of things, that evidences previous human activity”

could be decided to be a monument. Is that definition wide enough to capture all sorts of archaeological remains, or is it too wide? Have you given consideration to questions of definition?

The bill provides an opportunity for ministers to designate, if they wish to do so. As part of the decision making, the evaluation will lie with ministers, and I hope that you think that we will take a reasonable, commonsense approach. We expect most of the definitions to be in terms of archaeology, and we anticipate that there will be fewer than 10.

In my letter to the committee, I cited some examples that one of your witnesses gave you. It was suggested to you that “human activity” is a wide-ranging definition, but the site must be of real national significance in relation to historical human activity. Even then, it would be up to ministers to determine which areas to designate.

Important archaeological sites are probably underidentified with regard to protection and legislation, which is why we want to include them, although we do not anticipate there being an extensive number of sites. We wish to issue policy guidance to explain to people what we mean. That is not something for the bill—it will be done secondarily—but I am happy to provide it around stage 2, if that would be helpful to the committee.

Thank you for that commitment, minister.

12:30

Thank you, minister, for your helpful letter regarding the section 25 issue. I note that what you say in the letter clarifies quite a few concerns that witnesses raised.

From a public perception point of view, the key is to ensure that the liability for any damage to property is targeted at the person who caused the damage rather than the owner. How will the bill deal with that specific issue, notwithstanding your comments to clarify some witnesses’ concerns? Could you give us some clarification on that central point?

It is important to reflect that the bill gives responsibility to the owner. I will explain our thinking on that. The main purpose is to improve the quality of buildings that have fallen into disrepair or need urgent works. The issue is what we can do to help to get the works done, rather than who then pays for it.

It is a bit like the situation that people might experience when they purchase a house. If urgent works need to be done, either the owner does them before they sell the property or the price of the works is included in the price that the buyer pays, but the works are done regardless. We are trying to take an approach that will ensure that the works are done, but the liability has to be with the owner and their successors. Either way, the original owner who has not carried out the works will end up paying for them either by reducing the purchase price for the successor or by doing the works themselves before they sell.

I accept that, minister, and it is absolutely fair. However, are you confident that the bill will address the problem of coming to terms with the person who has caused the problem, especially given the fact that the current situation is a bit more vague?

That is difficult. How do we get people to repair buildings? That is one of the biggest challenges faced by every single town and city in Scotland. People can be fined and punished for not repairing buildings, but that is not what we are saying here. We are trying to impose on them the liability for expenses for urgent works. It is important that we engage with owners and ensure that they are aware of what they need to do and what their responsibilities are, but we will not necessarily do that through legislation. It would be disproportionate to the scale of the problem if we went round Scotland fining and punishing people for neglecting their homes and buildings, although a great deal of activity needs to take place and improvements need to be made. The bill aims to help the process by ensuring that the liability is such that repairs are more likely to be effected, as opposed to punishing the owner for not doing them in the first place.

Do you feel that the new legislation will act as a greater deterrent?

Yes.

Why do you feel that?

The idea is to deter owners from allowing their buildings to fall into unnecessary disrepair to the extent that they need urgent works. Owners will be penalised in terms of the financial value of their property when they come to sell it.

Your letter clarifies the point about the five-year limit for the notice of liability. Some witnesses were concerned about that, although I note your reasons for it. Are you convinced that the five-year limit is appropriate and that people will not try to go up to the limit and then get out of it and leave themselves no longer liable?

The fact that the notice of liability has to be renewed after five years is important. If the period is indefinite, there is a danger that it will just lie there and nothing will ever be done. The fact that there has to be a reapplication will, I hope, mean better engagement between the relevant authorities and the owner. The authorities will be able to tell the owner that the notice still stands and is to be renewed because the liability still exists. If the notice lasted forever, it could just hang on the wall and no one would pay any attention to it. That is why we think that the five-year limit is appropriate.

Section 18 relates to certificates of immunity. The minister acknowledged in her opening statement that there has been a level of debate around this issue, particularly in relation to hostile third parties, and some organisations have expressed concern. Will the current practice of not processing applications during consideration of a live planning application apply to applications for a certificate of immunity?

I will ask someone else to give you the details, but Historic Scotland is committed to turning an application around within eight weeks, to ensure that there are no unnecessary hold-ups. I suppose that you are asking whether the processes can run in parallel or whether the period for considering the application for the certificate would be at the front end. The benefit will be to developers—this is an improvement for developers that are looking to do works. The frustration that you might have heard from people involved in some of these exercises is that they have to hang around to see whether there is any interest if the building is listed, only for people to turn round and say that they are not interested—a great deal of time is lost. I will ask someone else to comment on whether there will be a parallel process or whether the consideration of the application for the certificate will be at the start.

The current position is that we have a policy of not listing in the face of a live planning application. The intention would be that once certificates are in place, we would no longer need that policy. What we are proposing would be the alternative to it.

The difficulty with our current policy is that we say that we do not normally list in the face of a live planning application, but we cannot give an absolute guarantee that we will never do so. Any developer involved in a planning application will assume that we will probably not list, but, given the way the law is framed, we can never rule that out. If a developer comes to us and asks whether we can guarantee that we will definitely not list during their live planning application, we cannot do so. The certificate will deliberately create a period of absolute certainty. In some cases that might mean that the building is listed, but at least people will know which regime they are in.

There has been a lot of discussion about whether there is a problem with hostile third parties. It has been suggested that applications be restricted to owners and occupiers, which I think is the situation in England, although there are other differences between the two systems. It has also been proposed that a charge should be applied, which might reduce the risk of vexatious applications. The committee has tried to explore that. I do not think that we have taken a final view on it. We tried to draw out whether the concerns that have been expressed are reasonable. Does the minister have anything to add to what she said about that in her opening statement?

We do not expect a large number of certificates. A system of certificates has been in place in England for a number of years and there have been seven to nine applications a year. We anticipate that even if there were more than that, Historic Scotland would be comfortable with an estimate of about 20 to 30 a year. I suppose that the issue is whether there is fairness in the system. People might have different views on this, but there was a big debate when the Planning etc (Scotland) Act 2006 went through as to the fairness for third parties and owners and who has the upper hand. On fairness and equity, local communities might want to own their town or village. I was in West Kilbride in Kenny Gibson’s constituency over the summer. If a community really wants to take ownership of the town, wants to reinvent itself and wants its high street or other areas to be redeveloped, it might be interested in asking for a certificate of immunity. It could then involve other developers in reinventing or regenerating the town. In that situation, the community would not necessarily own the buildings, unless we are talking about some kind of community buy-out. If you restricted applications for certificates of immunity to the people who own the property or are about to develop them, would you be cutting out other people who have a genuine interest?

There is a genuine debate to be had, and I would be interested to hear the committee’s views. The other point is that there might be vexatious applications that are not about development but about ensuring that nothing ever happens, by trying to get everything listed. There are pros and cons to the proposed system, and it would be helpful in due deliberations for stage 1 to set out those pros and cons and whether the committee has a view. It is an important point.

What we know is that the provision has not been tried in Scotland—it is untested in that sense. It is a new policy, and there is always uncertainty about where to cast the boundaries. We have always been conscious of not wanting to prejudge when the certificate will be useful, which is the main issue. If we limit who can apply, cases may come forward later to which we wish to respond positively but there is a legal barrier to doing so. With such a provision, we are never quite clear what cases might come forward and, as the minister said, in what situations people might find the certificate useful.

It is worth saying that it is and will continue to be the case that any person can ask ministers to consider a building for listing. That has always been a fundamental part of the listing process—part of its democratic base—and it will continue. It is important to bear that in mind—and that people who do not want to use the route in the bill will always have the other avenue. That is the balancing act that we are looking at.

I think that there was broad support for the certificate. The aim of giving confidence to developers who are looking to take on buildings was recognised but, as Lucy Blackburn said, the flip-side to the system is that if a developer applies for a certificate of immunity and it is refused, it is likely that the building will be listed. There were questions about whether the provision will produce the policy outcomes that it is intended to produce, but I appreciate that it is an untested system and that we will have to wait and see how it operates in practice.

There was a suggestion from some witnesses that, rather than have a certificate system, the Government could introduce a policy of reviewing listed buildings every four to 10 years, which would provide accurate listed building information for each local authority. Have you thought about alternatives to the certificate?

In principle we could do that, but it brings us back to the convener’s question about resources. Unless we are about to agree in the budget to have additional resources rather than to implement the reduced budget that we expect, I do not think that that system would be feasible. A more cost-effective way of obtaining the end result is by dealing with a more limited number of cases through the route in the bill. If we were to resurvey every 10 to 12 years, we would be contemplating additional expenditure of £1 million to £2 million per year. We think that the bill provides a better route to reaching a solution to help and support development.

I have a final question. When we took evidence from Lucy Blackburn previously, she said that there were on-going discussions among the Government, the Scottish Property Federation and the Law Society about concerns on the issue. Are those discussions still on-going? Have there been further meetings?

I will meet the SRPBA tomorrow.

Thank you.

As the minister mentioned in her opening statement, a number of stakeholders and bodies have suggested that the bill’s powers could be enhanced specifically to include a duty on all public bodies to have special regard to Scotland’s historic environment and to require local authorities to have access and give regard to appropriate information. From your opening remarks I understand fully that that would be at odds with the relationship with local authorities in the concordat, and I note the point about partnership being preferable. The third argument you deployed was that costs would be involved and that it is disproportionate to place statutory duties at a time of financial restraint, but I do not understand why there would be any costs involved in that proposal.

It would be difficult to cost, but the implication from the people who argue for the duty of care is that we bring with it a greater policy and resource application to caring for the environment. That is implicit in the arguments that have been made. I do not think that we can judge that in the current circumstances, because it is a bit of an unknown.

On the duty of care for different bodies, we are not talking about just the usual suspects, such as local authorities. The Forestry Commission, for example, is an important partner in the care of historic buildings and sites because monuments might be on its land, and there might be a number of sites on Ministry of Defence land. It is not just a matter for councils; it can be for other bodies, too.

12:45

The important issues are building relationships and the application of expertise. I come back to the point that what is important in Scotland, and what I as minister am keen to facilitate and drive forward, is how we have that sharing of expertise and resources across different areas. It is about sharing expertise and resources not only within council areas but with all these other partners, whether the matter relates to motorways, forestry or the Ministry of Defence.

We are working with all the different bodies and the concern that has been raised has been met with the response that we need to get everybody around the table to establish what effective duty of care would mean not in respect of legislation but in practice. That is probably a more effective approach than having a provision in the bill. There is strong resistance from local government to the imposition of statutory duties in general. You will have come across that in respect of bills that you have dealt with and a number of other issues. Local government is trying to resist as much statutory enforcement from national Government as it can.

I note the broader principle, but I was asking about costs. The minister is suggesting that it is implicit, but it is not implicit in the argument of the organisations who are proposing the duty; they explicitly state that costs should not be involved. Several submissions make that point. I will quote from the submission from the Society of Antiquaries, which states:

“Scottish Government and local authorities are clearly opposed to any additional burdens and costs ... However, we argue that these provisions do not add any significant burdens to either public bodies or local authorities, since information and expert advice is already available to the local authorities”.

In fact, it is a duty that Scotland’s public bodies should have regard to in fulfilling the duties that they already have.

My second point relates to ecclesiastical buildings, which you helpfully mention in your letter to the committee. I welcome the point that you make in the letter that the churches and other owners of ecclesiastical buildings would probably strongly object to the current voluntary situation being amended. Did you think about making such a change and consult upon it and decide not to? In other words, has there been any consultation with the churches or any other bodies about bringing ecclesiastical buildings into the listed building system?

I will ask others to respond in relation to the consultation, because it took place before I became the minister.

The Government never had a proposal to remove the ecclesiastical exemption so, strictly speaking, we have not consulted because it has never been a proposal; it was introduced by some of the responses to the draft bill. It was considered at that point by ministers and it was not taken forward in the final bill.

We have built a relationship with the ecclesiastical bodies that have major holdings, such as the Church of Scotland, and we meet them periodically to discuss how we can assist them with estate management, because they clearly face significant challenges as they have more buildings than they need. We want to work with them. The approach that we have taken is to encourage them to look at their needs and to come to talk to us so that we can identify which buildings—it will not be all the buildings they wish to vacate, in terms of this part of the agenda—they feel they do not want, so we can help them see ways through, because we can bring in expertise and knowledge about successful projects involving redundant church buildings.

We are committed to reviewing the exemption from the voluntary scheme for external works. We will need to do that quite soon as it is probably overdue for review and it will provide an obvious point at which to talk to the churches about how the voluntary scheme is working.

I note from my experience in my time as minister that there is a healthy and good relationship with the churches in respect of grants, restorations and so on. The issue is therefore: if something is not broken, why fix it? The review that Lucy Blackburn is talking about will identify whether there are any issues for improvement. I stress that there was not any sort of strong demand or push for a review, but what she has said refers to that.

Your first point was about the duty of care. The concern is to do with harmonisation with other areas. The term “historic environment” is broad; it embraces large parts of older settlements as well as rural locations, which means that any duty to have regard to it could be extremely generous. I know that some of the organisations that have called for that duty have said that there would be no cost attached to it, and I have met people who have been hopeful that it would allow better stewardship of the historic environment. Again, you have to take what you have been given as evidence.

The duty to have regard to the historic environment would have a much greater impact on public bodies than similar duties such as those that are in the Marine (Scotland) Act 2010. We have to be conscious that, just as we are trying to harmonise scheduled monuments provisions with listed monuments provisions and the historic environment with planning aspects, we are also trying to harmonise, as far as possible, environmental protection of the built environment with environmental protection of the non-built environment and the marine environment. That is another argument for keeping the situation as it is just now.

Including in legislation ground surface treatments such as the cobbles in Charlotte Square has been raised a couple of times. Have you thought about extending some sort of statutory or regulatory protection to those areas?

No, but I would be interested to know whether there are examples of situations that demonstrate that there is a need to do that.

I understand that there is a situation in Kelso that is relevant to this point—I think that it might have been referred to in the letter that was sent to you—but I think that it was an issue before 1993. However, we are not aware of anything more current being raised by Historic Scotland in that regard.

I think that there are concerns about the refusal to list pavements, but I am not sure that there is a strong argument for it. Equally, I am not sure that there is a strong argument against it, either.

Historic Scotland might have other views on pavements.

We would like to talk to the Royal Town Planning Institute at a later stage in the bill process about the particular cases that have been raised, because we would like to understand the particular situations and what the scale of the issue might be. Listing legislation talks about structures but, until we have had test cases that have failed to go through, it is difficult to see what the problem would be.

So, our proposal seems to be: if in doubt, leave it out.

The minister suggests that 1993 is a long time ago. In historic environment terms it is yesterday. I am sure that the residents of Kelso still hold a grudge about losing the cobbles.

If, in evidence to the committee, a strong case has been made for the proposal, it would be helpful if that were included in your report.

We had an interesting discussion about the curtilage of modern buildings and the fact that some modern buildings have no protected curtilage. I think that that is a discussion to be had before stage 2.

We will identify with the clerk any such issues that you would like us to come back to you on in relation to your preparation for stage 2.

That concludes our questions to you, minister. I am sure that it makes a change for you to get such a warm welcome at the committee.

12:54 Meeting suspended.

12:54 On resuming—