Transfer of Ownership by Agreement
The vast majority of heritage assets are in private ownership. Rarely, where an owner is unable or unwilling to maintain an important property adequately, it may be advisable to take it into public control or charitable ownership to conserve it for future generations. The building or site can then be properly repaired and effectively monitored, perhaps with the assistance of grant finance. This can also provide the opportunity to allow greater public access and perhaps a new community use that assists in achieving the community and planning strategies for the area as well as providing a sustainable conservation use.
Charities, such as buildings preservation trusts, do not have powers to compulsorily acquire historic properties, but can obviously acquire them by agreement with the owner. Charities can, though, stand behind a compulsory acquisition by a public authority with a 'back-to-back' agreement under which it will take the property from the public authority as soon as it is compulsory acquired while recompensing all or part of the authority's costs. It is perfectly legitimate for the authority to use its powers in this way and indeed such arrangements can improve the prospects of a successful compulsory acquisition.
The Secretary of State and Historic England have powers (ref. 1) to acquire by agreement or gift any building which appears to them to be of “outstanding historic or architectural interest” and any related land. Historic England also has power to acquire a building in a conservation area that is of special historic or architectural interest and any other garden or land that is of outstanding historic or architectural interest (ref. 2). 'Outstanding' in this context has always been interpreted as meaning Grade I or II*.
The Secretary of State and Historic England, with appropriate consents, may make whatever arrangements they wish for the management and disposal of the property.
If a listed building is in poor repair and the owner is unwilling to sell or carry out the necessary repairs by agreement there are compulsory purchase powers available to the Secretary of State, a local authority and Historic England (in Greater London only) for use in appropriate cases (ref. 3).
A scheduled monument may be acquired by agreement or as a gift by a local authority (after consultation with Historic England) or by Historic England with the consent of the Secretary of State (ref. 4). Any land adjoining or in the vicinity of the monument needed for its maintenance or management, or to provide and facilitate access to it may also be acquired.
Once a monument is in public ownership it may only be disposed of on terms which will secure its preservation, except when that preservation is no longer possible.
The Secretary of State may also acquire any scheduled monument by compulsory purchase and any land adjoining or in the vicinity required for its maintenance or access (ref. 5).
Guardianship of ancient monuments
Guardianship arrangements are an alternative to acquisition by a public body. The guardian (the public authority) agrees to accept responsibility for management and maintenance of the ancient monument and in return acquires certain rights over the property. The owner of the monument does not give up ownership but is subject to the guardianship agreement (ref. 6).
Guardianship agreements are a voluntary arrangement. The Secretary of State, Historic England and local authorities all have the power to become guardians of ancient monuments.
Once the monument has been taken into guardianship the guardian is under a statutory duty to maintain it and has very wide powers to exercise control and management and to do everything necessary for its maintenance, including archaeological investigation. There is also a responsibility to provide public access and visitor facilities. Associated land may also be taken into guardianship.
There are substantial numbers of properties in the care of Historic England under guardianship arrangements.
Any scheduled monument acquired by the Secretary of State, Historic England or a local authority under the Ancient Monuments and Archaeological Areas Act 1979 must be made open to the public (ref. 7), although access may be regulated and even entirely excluded in certain circumstances.