It's not quite the stuff of Lara Croft, but a niche but important question when you own a property within which a scheduled monument is located, is 'it possible to prevent access to that scheduled monument from the general public'? Yes and no is the short answer!
With the need to deliver more homes, developers are in some cases now considering redevelopment as a way of increasing density and delivering more homes. A knock-on effect of such has resulted in sites that require ongoing maintenance or repairs in relation to certain characteristics being passed on to land owners/developers. In this article we explore any implied rights of access in respect of scheduled monuments.
What is a scheduled monument?
A monument is scheduled by the Secretary of State. It occurs where a monument is considered of national importance and it is deemed that the scheduling of such would assist in preserving that monument. Interestingly, monuments do not just include statues but varying sites and structures for example, tunnels, parks and gardens. There are almost 20,000 scheduled monuments in existence at the time of this article and a record of all listings can be found online here in the National Heritage List for England (NHLE). It is possible to search by area if you are unsure of a listing number.
What obligations do you acquire in respect of scheduled monuments as part of a land purchase?
There is no legal obligation relating to the management of the monument however if you wish to undertake works to a monument consent needs to be obtained from the Secretary of State for Culture, Media and Sport. This is separate to planning permission and something to bear in mind.
Access to scheduled monuments
One question that arises is whether or not an owner of a scheduled monument must allow access to the general public for the purposes of viewing the monument. Developers and landowners may have concerns about the considerable cost of refurbishing and ongoing maintenance obligations, especially where a monument attracts significant numbers of visitors or is in a location which is ripe for attracting antisocial behaviour – increasing the ongoing costs.
Whether there is a right of access for the general public depends on the ownership of the monument and if it is not clear, a question that should be asked of any seller from the outset of any acquisition.
Privately owned monuments
Where a statue is privately owned, public access to the statue is not mandatory - that is to say, that if you chose to prevent the general public from accessing the monument there is nothing to prevent you from doing so.
Where considering restricting access to a monument on a development it is important to ensure that you are not inadvertently implying rights of access to the monument/area where contributions towards the repair and maintenance of the monument are levied as part of the service charge.
It is possible that whilst the monument was in the ownership of another party that access was not restricted to the general public and as such, where enjoyed for a prescribed period of time implied rights of access have developed. With that in mind, as part of any due diligence for a site, questions around the current access to the monument and surrounding area should be raised.
Publicly owned monuments
Where monuments are owned by or in the guardianship of English Heritage, the Secretary of State or a Local Authority, a right of access is preserved in respect of the general public. Provisions can be made in respect of opening times, and other measures to preserve the monument if it is considered necessary for the protection of the monument.
Summary
If you are considering restricting access to a scheduled monument to the general public, there are some considerations to have in mind:
1. Who is the ultimate owner of the scheduled monument?
Are they a public body? If so, restricting such access will be limited as discussed above. Ensure that on any acquisition the ownership of the monument is ascertained.
2. If the monument is owned privately and you wish to restrict access:
Check to ensure that there are no implied rights of access already enjoyed by the general public for a prescribed period; where the ongoing repair and maintenance costs are passed to plot owners, check that no implied rights of access are granted.
If you have any questions or queries relating to scheduled monuments, access to, or the repair and maintenance of such, please do not hesitate to contact us.
