The National Assembly for Wales has legislative competence in relation to 'ancient monuments and historic buildings’. This legislative competence covers “archaeological remains, ancient monuments, buildings and places of historical or architectural interest and historic wrecks”.
‘Ancient monuments’ means those monuments of historic, architectural, traditional, artistic or archaeological interest. Such monuments may include buildings, structures, works or excavations (or the remains of such things) and the remains of vehicles, vessels, aircraft or other movable structures.
This legislative competence is subject to the general exceptions outlined in Part 1 of Schedule 7 to the Government of Wales Act 2006, the most relevant of which is the exception relating to railway heritage.
The core of the law in this subject is to be found in primary legislation (or ‘statutes’) made by either the UK Parliament or the National Assembly.
The principal Acts that currently apply in relation to the historic environment in Wales are:
- Ancient Monuments and Archaeological Areas Act 1979
- Planning (Listed Buildings and Conservation Areas) Act 1990
These Acts confer extensive powers on the Welsh Ministers to designate monuments of national importance, areas of archaeological importance and buildings of special architectural or historic interest. The Acts also confer powers on local authorities to designate areas of archaeological importance and conservation areas. The effect of designation is to impose controls on works that may affect the designated area or thing and to confer various powers on the Welsh Ministers and local authorities to enable it to be protected.
The Protection of Wrecks Act 1973 confers similar powers on the Welsh Ministers to designate areas around the sites of historic wrecks in the sea adjacent to Wales.
There is a large amount of subordinate legislation made under the Acts (such as orders, regulations and schemes). Before the devolution of power to the National Assembly in 1999, subordinate legislation was made either on an England and Wales basis or separately for Wales by the Secretary of State for Wales. A number of these pre-devolution instruments remain in force. The functions of the Secretary of State for Wales were transferred to the National Assembly for Wales in 1999 (SI 1999/672) and this included a number of the functions to make subordinate legislation in those statutes which existed at that time. From then on the National Assembly exercised the transferred powers to make subordinate legislation for Wales until 2007 when the powers to make subordinate legislation were further transferred to the Welsh Ministers on the coming into force of the Government of Wales Act 2006.
In addition to the Acts and subordinate legislation, there is policy advice and guidance in relation to the historic environment. This includes pre-devolution Welsh Office Circulars and post-devolution Welsh Government guidance. The principal documents are:
- Welsh Office Circular 60/96 Archaeology
- Welsh Office Circular 61/96 Historic Buildings and Conservation Areas
- Welsh Office Circular 1/98 Planning and the Historic Environment: Directions by the Secretary of State
- Planning Policy Wales
As well as domestic legislation and guidance there are the following Conventions:
- European Convention for the Protection of the Architectural Heritage – 3 October 1985 and revised 16 January 1992
- European Landscape Convention – 20 October 2000
- 1972 World Heritage Convention
The Welsh Government has proposed that the law in this area should change.