Class consents for works to a scheduled monument

Some works to a scheduled monument are already consented, and no application is needed. The Ancient Monuments (Class Consents) Order 1994 grants scheduled monument consent for defined classes of works, made under the Ancient Monuments and Archaeological Areas Act 1979. For a farmer with a scheduled monument in a field, the class that matters is the one covering agricultural, horticultural and forestry works, and it is narrower than most people assume.

Everything outside those classes needs an application. Carrying out unconsented works to a scheduled monument is a criminal offence, not a planning breach, and ignorance of the schedule is a poor defence once the monument appears on the title.

What a class consent actually is

A class consent is a general grant of scheduled monument consent for a described category of works. Where your works fall squarely inside a class, you may proceed without applying, and the consent operates automatically.

That is a useful mechanism and it is also a trap, because the classes are drawn tightly and the burden of showing that works fell within one sits with the person who carried them out. If the class depends on a condition, and you cannot evidence the condition, you are in the same position as someone who never had consent.

Read the Order itself rather than a summary, including this one. It is short, it is free on the legislation website, and the exclusions within each class carry most of the weight.

Agricultural, horticultural and forestry works

The agricultural class permits works of the same kind as those carried out lawfully in the same location within the preceding six years. Two limbs, and both must be satisfied: same kind of works, same location, within the six-year window.

The class then excludes a list of activities outright. The exclusions include works that disturb the ground below the maximum depth affected by normal ploughing in that location, subject to an absolute ceiling of 300 millimetres. They also exclude subsoiling, drainage works, the planting or uprooting of trees, hedges and shrubs, stubble burning, and the commercial cutting or uprooting of turf.

So the practical position for a scheduled monument under cultivation is this. Continuing to plough at the depth you have ploughed for years is generally covered. Ploughing deeper is not. Going below 300 millimetres is never covered, whatever the history. Subsoiling to break a pan is not covered even if you did it five years ago, because it is excluded by name rather than by depth.

Two further points that catch people. Bringing land back into cultivation after a period out of production may fail the six-year test, because there is no lawful work of the same kind in the window. And a change of crop that brings a change of cultivation method, for example moving from cereals to root crops requiring deeper working or mechanical harvesting, is a different kind of work.

Evidencing the cultivation depth

The six-year rule and the ploughing depth limit both turn on evidence about the past, and the time to gather it is before anyone asks.

Keep a simple record for each parcel containing a scheduled monument: the crop each year, the cultivation operations, the implement and the working depth, and the contractor where one was used. Dated photographs of the implement set up in the field are worth more than a recollection. Where the farm is in an assurance scheme or an agri-environment agreement, those records may already carry much of it.

Measure the depth rather than estimating it. The distinction between 250 and 320 millimetres is the distinction between consented and criminal, and nobody can judge it by eye from the cab.

Where the depth is close to the limit, the safer course is to take the parcel out of cultivation or move to a shallower system. Historic England and Natural England can discuss options, and agri-environment agreements have historically supported reversion to grass on cultivated monuments. Ask before you plough.

Urgent works in the interests of safety or health

A separate class covers works that are urgently necessary in the interests of safety or health, and it is hedged about with conditions that matter.

The works must be limited to the minimum measures immediately necessary. The class does not authorise taking the opportunity to deal with a wider problem while the machinery is on site. And written notice must be given to the Secretary of State as soon as reasonably practicable after the works, explaining what was done and why.

Photograph before, during and after. An urgent works class consent defended by photographs and a contemporaneous note is a different proposition from one defended by memory two years later.

Other classes and the bodies they cover

The Order also contains classes covering works by particular bodies, including maintenance and repair works to navigations, works to machinery where no material alteration results, and works carried out by or on behalf of the national heritage body.

Those classes are of limited use to a private owner and they are worth knowing about for a different reason. If a third party proposes to work on or near a monument on your land, ask which consent they rely on. A contractor asserting that a class consent applies should be able to name the class.

When class consent is withdrawn on a specific monument

Class consent is not permanent and it is not uniform across every monument. The Secretary of State can restrict or withdraw its application to a particular monument or to particular works, on advice, where the works being carried out under the class are causing harm.

Where that happens, the owner is notified, and the withdrawal will be recorded. Check the schedule entry and any associated direction as part of the title investigation when land changes hands, and again before changing any cultivation practice. A direction made in 2004 to a previous owner does not lapse because the farm was sold.

When you still need scheduled monument consent

Outside the classes, the position is straightforward. Section 2 of the 1979 Act requires written consent for works resulting in demolition, destruction, damage, removal, repair, alteration, addition, flooding or tipping on a scheduled monument.

That catches a great deal of ordinary rural activity: erecting a building or a fence with driven posts, laying a track, installing services, creating a pond, tipping spoil, and putting up a gate on a new line. It also catches metal detecting, which needs separate consent under the Act.

Scheduled monument consent is separate from planning permission and neither substitutes for the other. A new agricultural building over part of a scheduled monument needs both, and the consent process is run by the Secretary of State on advice rather than by the local planning authority. Where a planning application is also involved, a Heritage Statement setting out the significance of the monument and the effect of the proposal will be expected, and on larger sites an Archaeological Desk-Based Assessment will usually come first.

Where harm to a designated heritage asset of the highest significance is in issue, the policy tests are demanding, and the way that balance is struck is set out in the test for substantial harm.

What to keep on the holding

Build a small file for each scheduled monument on the land and keep it with the deeds.

1. The schedule entry, the list description and the mapped extent, downloaded and dated.
2. Any direction restricting or withdrawing class consent.
3. The cultivation record for the parcel, year by year, with depths.
4. Photographs of the monument taken at intervals, showing its condition.
5. Correspondence with Historic England or the county archaeologist.
6. Copies of any scheduled monument consents granted, with their conditions.

That file answers the questions an enforcement enquiry asks, and it answers a purchaser's solicitor at sale. It takes an afternoon to set up.

This is general guidance, not legal advice. Check the position with Historic England, the Secretary of State's consent process and a qualified heritage professional before relying on it.

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