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Digging up the past - a costly mistake?

Digging up the past - a costly mistake?

A reported case this week is a firm warning for landowners in respect of Historic Environment Scotland (HES) and the bite that they have in respect of Scheduled Monuments given their status as historic sites of national importance.  The legislation regarding Scheduled Monuments set out in the Ancient Monuments and Archaeological Areas act 1979. 

HES estimate that there are around 8,000 Scheduled Monuments in Scotland spanning from 8,000 years old to 50 years old and that 80% are located on agricultural land.  Whilst scheduling a monument does not affect ownership of the site nor increase public rights of access to the site, it does add a layer of statutory consent required for any works envisaged in respect of a Scheduled Monument or an area in close proximity. Legislation does allow for permitted activities such as ploughing fields that have at least 10 years of previous ploughing however any further excavations or works should be considered carefully.

A potential misconception perhaps made by landowners is that the Scheduled Monument status only applies to the footprint of what can be seen on the ground – e.g. a standingstone circle; and that the status is only for record keeping purposes.

There are however Scheduled Monuments that may not:- 

  • seem obvious in term of historical value – WWII tank bollards along beaches;
  • appear at all to the untrained eye - a bronze age burial mound that appears as a grass mound; or
  • be seen from ground level at all – fort foundations visible only from an aerial perspective and then only when the land is in crop. 

Landowners must therefore ensure that they check Pastmap or Canmore (two open access portals from HES’s website) if they have any inkling of sites that could potentially be Scheduled Monuments on their land.

Where there are Scheduled Monuments, landowners are under no duty to maintain or enhance  the site, however HES will work with landowners wishing to improve sites to ensure that any works are undertaken using best practice and with the necessary consents. They also provide grants to assist with works and projects given the costs of specialist works often required.

HES also make it expressly clear in their scheduling information, that the landowner should ensure that everyone working on the land is made aware of the location of Scheduled Monuments.

As highlighted by the Upper Tote Cairn case in Skye this week ignorance by the landowner of the Scheduled Monument and it’s status, coupled with failing to deal with HES correspondence in respect of Scheduled Monument, shows it can prove a costly mistake.  In this case the farmer in question excavated top soil from the Cairn as part of a farm building project. The cairn site on his land is however believed to have over a millennia of history linked to it and has been recorded by HES since 1974 as deserving of Scheduled Monument status as it is believed to be a Neolithic burial cairn. Whilst he plead guilty at the initial court hearing, he has been fined £18,000 (against the maximum fine of £50,000) for the excavation work.

As a statutory body HES are required to keep records of the scheduled sites and complete site visits on a recurring basis generally every 5-10 years however they may visit more regularly if appropriate. It is also worth noting that they have the power to define new Scheduled Monuments but can also remove sites from the statutory list if they are deemed no longer to be of national importance. If that occurs, the site is no longer subject to  statutory scrutiny from HES but could potentially remain a site listed with other bodies such as the Local Authority.

Anyone who is purchasing land should ensure that the Pastmap and statutory searches are completed to ensure they are fully aware of what designations apply to the purchased land.  The recent case shows that being aware of the designations affecting your land is vital and should be acknowledged and respected.  If you have any concerns regarding Scheduled Monuments on your own land, or are intending to purchase then please let one of the Land & Rural Team know.

About the author

Robin Dunlop
Robin Dunlop

Robin Dunlop


Land & Rural Business

For more information, contact Robin Dunlop or any member of the Land & Rural Business team on +44 131 603 8365.