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Item 7 - Scottish Ministers Decision - Sheephill Quarry

West Dunbartonshire Council · 11 October 2023
Back to Planning Committee — 11 October 2023 and its agenda

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WEST DUNBARTONSHIRE COUNCIL
Report by the Planning, Building Standards and Environmental Health
Manager  
Planning Committee: 11 October 2023
___________________________________________________________________
Subject: Scottish Ministers Decision - Scheduled Monument Consent for
Quarrying Operations, Sheephill Fort, Sheephill Quarry, Milton,
Dumbarton.  
1. Purpose
1.1 To provide the Committee with an update regarding the Scottish Ministers
decision for the above Scheduled Monument Consent.
2. Recommendations
2.1 That the Committee notes the decision of the Scottish Ministers.
3. Background
3.1 The Council agreed to accept the conditions of the Review of Minerals
permission (ROMP) for Sheephill Quarry in January 2021.   The planning
permission granted in 1949 for Sheephill Quarry allows the full excavation of
the whole site, which includes the rock under Sheep Hill Scheduled
Monument and the agreed ROMP includes this area.  The vitrified fort of
Sheephill was designated as a Scheduled Ancient Monument by the
Secretary of State in 1970. An application was made for Scheduled
Monument consent to Historic Environment Scotland on 13th September
2021. Previously, Scheduled Ancient Monument Consent (SAMC) was
granted in 2002 by Historic Scotland subject to a condition that the
archaeological excavation be carried out in strict accordance with a Written
Scheme of Investigation and that the loss of the fort shall be mitigated by the
excavation, recording and publishing of findings. Although the Planning
Committee in November 2021 submitted a response to the Scheduled
Monument Consent. It recognised the long complex history of Sheephill Fort
and the previous grant of Scheduled Monument Consent. The Council
indicated that the Scheduled Monument Consent (SMC) should be refused
as Sheephill Fort is an important archaeological site which should be
retained.  The Council advised that when assessing the application for SMC
consideration should be given by Historic Environment Scotland to their own
policies relating to Scheduled Monuments and in particular the Scheduled
Monument Consent Policy. If Historic Environment Scotland are minded to
grant consent the Council would recommend that a strict Written Scheme of
Investigation of the loss of the fort is required to mitigate by the excavation,
recording and publishing of the findings. This formed the basis of this
Council’s response to the Scheduled Monument Consent.

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3.2   On 18th November 2021 Historic Environment Scotland notified the Scottish
Ministers of its intention of grant of scheduled monument consent.  On 9th
September 2022 the Scottish Ministers directed that they would determine
the application themselves. 
4. Main Issues
4.1 The application was considered by means of written submissions and a site
visit by a Reporter appointed by the Scottish Ministers for that purpose. The
Reporter recommended that scheduled monument consent is granted
subject to conditions. The Scottish Ministers agreed with the Reporter’s
recommendations and has granted scheduled monument consent subject to
conditions. The decision letter and associated report is available:  
https://www.dpea.scotland.gov.uk/Casedetails.aspx?ID=121939
4.2   The Scottish Ministers agree with the Reporter’s findings and conclusions
with regard to the relevant policy in Historic Environment Policy for Scotland
(HEPS) and the Scheduled Monuments Consents Policy (SMCP) which
provides specific policies intended to apply to and inform the determination
of applications of this type. The SMCP makes clear that the scheduling
designation is in order to secure the long-term protection of monuments in
the national interest, in situ and as far as possible in the form that they have
come down to us. It sets out various principles that apply to scheduled
monuments. Of particular relevance to this case is that “The principle of
preserving scheduled monuments will only be set aside in circumstances
where wider considerations are deemed, on balance, to be of greater
importance to the national interest”. 
4.3  The Scottish Ministers also agree with the following findings of the Reporter:
• The proposal would be directly contrary to the SMCP, and consequently
also contrary to the overarching principles and policies outlined in HEPS.
• Policy documents cannot anticipate or be easily applied to the
circumstances of every case, particularly where they are novel or
exceptional in some way. In such cases, this does not mean that the policy
should be set aside, but it increases the likelihood that there may be
justification for a proposal despite being contrary to policy.
• The national policy context in which the 2002 decision (to grant scheduled
monument consent for the same works as proposed in this current
application) was taken was similar to current policy. This is in that policy
presumed against granting scheduled monument consent for developments
which would have an adverse impact on scheduled monuments unless there
were exceptional circumstances.
• No exceptional circumstances were found to support the 2002 decision.
The decision document concluded that the proposal was contrary to the
policy that applied at the time. Scheduled monument consent was
nevertheless granted.

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4.4  The Scottish Ministers note that it appears to the Reporter that the 2002
decision was taken in view of compensatory provisions in the Act and the
financial liability that Historic Scotland may have faced if consent had been
refused. The Reporter’s view is that compensatory provisions are not material
and should not have a bearing on the decision.  The Scottish Ministers do not
share that view and consider that in deciding whether or not to grant consent
they are entitled to take into account the significant cost implications for the
public purse. 
4.5  Notwithstanding the Reporter’s view regarding the issue of compensation, the
Reporter still recommends approval of the application. He advises that given
the underlying intent of policy in regard to protection of scheduled monuments
has not altered (in the time since the 2002 decision), there is a compelling
case for maintaining consistency in decision-making in the particular
circumstances of this case. In 2002, no exceptional circumstances were
presented despite policy seeking to protect scheduled monuments in
recognition of their national importance, as it continues to do. The Reporter
states that given nothing appears to have materially changed since 2002, he
considers that this application should be determined in a manner consistent
with the 2002 decision.  
4.6    The Scottish Ministers however consider that in this case, consistency in itself
is not a sufficient reason for approving the current application. The Scottish
Ministers are also entitled to reach a different view to that taken in 2002 on the
merits of preserving the scheduled monument.   The Scottish Ministers have
concluded that the proposal is directly contrary to the SMCP and HEPS.
However the Scottish Ministers give substantial weight, as a material
consideration, to the significant cost to the public purse likely to be incurred in
the event of refusing consent, under the provisions in section 7(1) of the Act
(compensation for refusal of scheduled monument consent). The liability for
compensation in the event of a refusal of consent is likely to amount to several
million pounds. The Scottish Ministers consider that this material
consideration outweighs the relevant provisions of SMCP and HEPS in this
case and justifies a departure from those policy documents. 
4.7    In reaching this decision, the Scottish Ministers have taken into account the
fact that although it is of national importance and can contribute significantly to
understanding of the past, the scheduled monument is located within the
quarry boundary and is consequently inaccessible to the public. The loss of
Sheep Hill, as well as the monument upon it, would result in a complete
inability to continue to understand, appreciate or even be aware of its
historical existence, importance and original landscape context.

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4.8    The Scottish Ministers agreed with the Reporter that a requirement for
archaeological investigations and recording would be consistent with the
requirements of policy SMCP4 in the Scheduled Monument Consents Policy.
It is justified to require such investigations, in recognition of the site’s national
importance, but particularly because once it has been destroyed, the only
means by which its historical existence would be capable of being understood
and appreciated would be through reference to published records. 
The Scottish Ministers granted scheduled monument consent for the
proposed quarrying operations subject to three conditions relating to
archaeological investigation work.   
5. People Implications
5.1 There are no personnel issues.
6. Financial Implications
6.1 There are no financial implications for the Council.
7. Risk Analysis
7.1 A risk assessment is not required.
8. Equalities Impact Assessment (EIA)
8.1  There are no equalities issues identified.
9. Consultation
9.1 There are no requirements for consultation.
10. Strategic Assessment
10.1    The Council agreed the conditions of the Review of Minerals Permission
(ROMP) in January 2021 and it supports the strategic priorities of the
Council.

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Pamela Clifford 
Planning, Building Standards and Environmental Health Manager 
Date: 11th October 2023
______________________________________________________________
Person to Contact: Pamela Clifford, Planning, Building Standards and
Environmental Health Manager  
Email: Pamela.Clifford@west-dunbarton.gov.uk
Appendix: None
Background Papers: Scottish Ministers Decision – Scheduled Monument 
Consent for Quarrying Operations Sheephill Fort 
https://www.dpea.scotland.gov.uk/Casedetails.aspx?ID=1
21939 
WP 98/076: Review of Minerals Permission 
Wards affected: Ward 3 (Dumbarton)