Historic and Archaeological Heritage and Miscellaneous Provisions Act 2023
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Grant or refusal of licence, etc. | ||
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151. (1) Subject to subsections (2) to (9) and section 153 , the licensing authority shall determine an application for a licence by— | ||
(a) granting the licence in respect of all or any of the licensable activities specified in the application to the applicant subject to such conditions (if any) attached to the licence as the authority thinks appropriate, or | ||
(b) giving a notice in writing to the applicant refusing to grant the licence in respect of all or any of the licensable activities specified in the application. | ||
(2) When the licensing authority grants a licence to which conditions are attached, or refuses to grant a licence in respect of all or any of the licensable activities specified in the application for the licence, the authority shall, at the same time, give the applicant notice in writing of the reasons for the conditions or refusal, as the case may be. | ||
(3) (a) Subject to paragraph (b), the licensing authority shall, in determining an application, take into account all of the information given to the licensing authority under section 150 in relation to the application but have particular regard to the protection of the archaeological, architectural or historic or other cultural or scientific interest, or the amenities, or any combination thereof, of a monument, wreck or archaeological object to which the application relates. | ||
(b) Other factors that the licensing authority shall have regard to for the purposes of paragraph (a) are as follows: | ||
(i) the outcome or result of any assessment of competence conducted pursuant to section 152 , whether in respect of the applicant or any person acting on his or her behalf; | ||
(ii) the provisions of any code of practice; | ||
(iii) the provisions of— | ||
(I) any international convention referred to in this Act, and | ||
(II) any other treaty or international convention to which the State is a party in any case where the provisions are aimed at promoting or securing the protection of the archaeological, architectural or other historic heritage; | ||
(iv) the public interest, including— | ||
(I) the cultural, scientific, social or economic value of the licensable activity in respect of which the licence is sought, and | ||
(II) the cultural, scientific, social or economic value of any development that the licensable activity is intended to facilitate or allow to proceed; | ||
(v) any economic or other loss (including a loss of amenity) which would be incurred if the licence concerned were not granted; | ||
(vi) the extent to which any existing lawful activity would be curtailed or discontinued if the licence concerned were not granted and, in that respect, for how long that lawful activity has been conducted; | ||
(vii) the extent to which any prior lawful activity which had an economic or other benefit would again become lawful if the licence concerned were granted and, in that respect, for how long that prior lawful activity was conducted; | ||
(viii) the extent to which there are, or are not, practical alternatives to what is intended to be achieved if the licence concerned is granted; | ||
(ix) the extent to which the licensable activity is or would be the subject of regulation by another enactment or the subject of a scheme enforceable at law. | ||
(4) Without prejudice to the generality of subsection (1)(a), conditions which may be attached to a licence include any of the following: | ||
(a) conditions relating to the manner in which the licensable activity and any related activity is to be carried out, including any specifications regarding the persons or categories of persons to carry out any such activity or their numbers and level of competence or the manner in which any such activity is to be commissioned or funded; | ||
(b) conditions requiring the carrying out (whether prior to, during the course of, or subsequent to, the carrying out of the licensable activity the subject of the licence) of any other licensable activity, a related activity or any action or activity relating to the protection or recording of any element of historic heritage including, without prejudice to the generality of the foregoing, the doing of anything referred to in section 28 (5)(a) to (d); | ||
(c) conditions requiring that the licensable activity and any related activity are to be carried out in accordance with any information (including any information as revised by the licensing authority) regarding the manner in which it is proposed to carry out any such activity which was submitted with the application or subsequently submitted by the applicant; | ||
(d) conditions requiring that the licensing authority or the State be indemnified by the applicant, or any other person specified in the licence, against any claim for loss or damages arising from the carrying out of the licensable activity or any related activity; | ||
(e) without prejudice to the generality of paragraph (d), conditions relating to the lodgement of bonds, in accordance with the prescribed procedures applicable to such lodgement and the use and return (whether in whole or in part) of such bonds, for the purpose of being applied (whether in whole or in part) towards— | ||
(i) the satisfaction of a claim referred to in that paragraph, or | ||
(ii) the continuation or completion of the carrying out of the licensable activity and any related activity due to the inability of the licensee to do that (whether by reason of the death or bankruptcy of the licensee or the insolvency or winding up of the licensee or any other reason); | ||
(f) without prejudice to the generality of paragraph (e), conditions relating to the provision of insurance cover for the purpose of the satisfaction (whether in whole or in part) of a claim referred to in paragraph (d); | ||
(g) conditions relating to requiring the applicant to submit reports to the licensing authority or other relevant bodies on the various stages of the carrying out of the licensable activity or related activity; | ||
(h) conditions relating to the contents of reports referred to in paragraph (g); | ||
(i) conditions relating to requiring the applicant to submit copies to the licensing authority of reports on the various stages of the carrying out of the licensable activity or related activity in cases where those reports are required to be made under another enactment; | ||
(j) conditions relating to advising the licensing authority of any subsequent adverse material change in the circumstances of the applicant, or of the licensable activity or any related activity, that will or may affect the satisfactory carrying out of that activity, including any period within which that activity is required to be carried out; | ||
(k) conditions relating to the storage or treatment of objects which are or may be archaeological objects found during the course of carrying out a licensable activity and any related activity, including such storage or treatment after the carrying out of the activity; | ||
(l) conditions relating to the safekeeping of records compiled during the course of carrying out the licensable activity and any related activity, including such safekeeping after the carrying out of the activity; | ||
(m) conditions requiring the applicant to seek a new authorisation relating to any aspect of the licensable activity or related activity where the particulars of such aspect are not sufficiently known, at the time the application for the licence is made, for the licensing authority to give appropriate consideration to that aspect; | ||
(n) conditions relating to the assignment of numbers to different aspects of the licensable activity or related activity; | ||
(o) conditions relating to requiring the publication, in any medium, of a report on, or other account of, the licensable activity and any related activity or the dissemination of any information on any such activity and the results or other information or knowledge arising from it; | ||
(p) conditions relating to requiring the restoration or repair of any land in the course of or at the conclusion of the carrying out of the licensable activity and any related activity and the subsequent conservation or protection of such land. | ||
(5) (a) For the purposes of paragraph (b) of subsection (4), a reference to “monument” in section 28 (5) includes a reference to any thing to which section 136 (2) applies. | ||
(b) A reference in subsection (4) to “licensable activity” includes a reference to any activity (and whether or not the activity is a licensable activity) required to be carried out by reason of a condition under paragraph (b) of that subsection. | ||
(c) A reference in subsection (4) to “applicant” includes a reference to any person engaged by or acting on behalf of the applicant including a person who is or will be in charge or responsible for any activity (and whether or not the activity is a licensable activity) required to be carried out by reason of a condition under paragraph (b) of that subsection. | ||
(6) (a) A licence shall not operate to make lawful a licensable activity other than— | ||
(i) a licensable activity specified by the applicant in his or her application and which is authorised under the licence, or | ||
(ii) another licensable activity required to be carried out by reason of a condition under paragraph (b) of subsection (4) if, and only if, that condition specifies that such activity may be carried out without a licence that is in addition to the licence in which that condition is specified. | ||
(b) A specification under paragraph (a)(ii) may be subject to such limitations as the licensing authority determines. | ||
(7) Without prejudice to the generality of subsection (1)(b), the licensing authority may refuse to grant a licence if the authority is satisfied that the carrying out of the licensable activity concerned (including any activity, whether or not the activity is a licensable activity, required to be carried out by reason of a condition under paragraph (b) of subsection (4)) is so much within the control or remit of one or more than one person other than the applicant for the licence that, in the interests of assisting in the satisfactory carrying out of that activity, that other person needs, or those other persons need, as the case may be, to make an application for the licence jointly with, or in place of, the applicant. | ||
(8) Without prejudice to the generality of subsection (1)(b), the licensing authority may refuse to grant a licence if the authority is satisfied that the non-compliance referred to in section 150 (2)(b) by the applicant or persons acting on his or her behalf, whether alone or in conjunction with other matters that the authority shall or may take into account, in accordance with the provisions of this Act, in determining the application, warrants such refusal. | ||
(9) (a) The licensing authority shall, before determining the application for the licence, ensure that, if the relevant provisions of Part 5 of the Habitats Regulations apply, those provisions have been complied with and, if an AA has been carried out, that the licence, if granted, and the conditions (if any) attached to the licence are compatible with such AA. | ||
(b) Where, in respect of the application for the licence, an EIA or an AA is required to be carried out— | ||
(i) the licensing authority shall endeavour to co-ordinate the carrying out of the assessment (including any public participation that is required), and | ||
(ii) the Minister may prescribe the procedures to facilitate the carrying out of the assessment (including any public participation that may be required). | ||
(c) The Minister shall publish a notice of (and containing) his or her screening determination for AA made for the purposes of paragraph (a) in such form and manner as he or she considers appropriate including publication on the website of the Department, together with information on the procedure for seeking to have the decision judicially reviewed. | ||
(10) (a) Subject to paragraph (b) and subsection (11), a licence shall not be construed to authorise the demolition of a prescribed monument the existence of which was not known to the Minister before the licence was granted. | ||
(b) Paragraph (a) shall not operate to prevent the demolition of a prescribed monument referred to in that paragraph pursuant to— | ||
(i) other provisions of this Act, or | ||
(ii) a licence granted, or amended, after the existence of the monument became known to the Minister. | ||
(11) The demolition of a prescribed monument referred to in subsection (10) does not include— | ||
(a) archaeological excavation, | ||
(b) works (including dismantling) carried out to the monument for the purpose of repairing, restoring or protecting the monument, or | ||
(c) the temporary or permanent removal of the monument for a purpose connected with— | ||
(i) the repair of the monument, | ||
(ii) the protection of the monument, | ||
(iii) the preservation of the health or safety or welfare of members of the public, or | ||
(iv) the provision of access, by members of the public, to the monument. | ||
(12) Where the Minister proposes to grant a licence and is of the opinion that the licensable activity which, if the licence were granted, would be authorised to be carried out by the licence may have significance to another state, he or she may, at his or her discretion, consult with an authority in that state, being an authority that has responsibilities as regards historic heritage in that state, in order to obtain the authority’s views (if any) on such activity. |