REVIEW OF OLD MINERAL PERMISSIONS
CHAPTER ONE INTRODUCTION AND CONTEXT
1.1 The general aim of this study was to assess the progress that has been made by planning authorities and mineral operators throughout Scotland in the review of old mineral permissions as required under section 74 and schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997 and to ascertain how effective the review procedures have been in practice. This chapter examines the legislative and planning context within which the review of old mineral permissions has been undertaken in Scotland and outlines the aims and objectives of the study.
1.2 The problems associated with old planning permissions for mineral working were initially identified in the Stevens Report of 1976 1.
1.3 The key problem highlighted by this report, centred on the fact that conditions imposed on planning permissions granted in the past typically did not make adequate provision to meet current environmental protection standards and associated working practices during working of the site. Nor did they provide for the satisfactory restoration of land following the cessation of extraction. In contrast to the current situation in which the planning consent which will normally be subject to a range of conditions intended to regulate and control many aspects of the development, permissions in the past were often virtually unconditional. Typically they defined the site boundary with little or no restriction on how extraction should be undertaken within this defined area. In many cases, particularly for consents granted in the 1950's and 1960's, the only condition imposed was a requirement to remove of all plant, machinery and buildings when working ceased. Although some restriction could be imposed by virtue of any details of the proposed development shown on the approved plans, in most cases, the only effective constraints to site working were largely self-imposed by the mineral operator or by the terms of any lease for the land or mineral rights. As such, the planning permission did not provide any basis through which effective control could be exercised over those aspects of the development with the potential to adversely affect the environment, local amenity or create nuisance for local residents.
1.4 The issue was first addressed through the Town and Country Planning (Minerals) Act 1981, which placed a duty on planning authorities to periodically review mineral sites in their area, and to make use of modification and other orders made available to them as deemed necessary for the upgrading of the relevant planning consent. A key (and at that time controversial) feature of this requirement was that the costs of implementing works arising from upgrading these old planning consents should not be met from the public purse. Separate legislative change was therefore required to facilitate reduction of the compensation levels which otherwise would have been payable as a consequence of planning authorities
using these powers to alter the terms of an existing planning permission. It was generally accepted that this first attempt to undertake the review of old mineral permissions failed to achieve its intended purpose. This was confirmed in a research study undertaken in 1990 2.
1.5 While this earlier study was primarily concerned to establish the extent to which training needs existed within the staff undertaking the review of mineral sites, it also gathered information on the progress of the review process and the perception of planning authorities on the difficulties they encountered. The study found that the principal reasons why most planning authorities had difficulty in meeting their statutory obligations at that time related to lack of staff resources, more urgent planning priorities, potential compensation liability/financial constraints, lack of staff expertise, and the poor quality of available records. Perhaps the most significant deficiency in the arrangements for this first review was that no timetable for commencement or completion was established within the legislation. In addition, the onus for instigation of the review process lay with the planning authorities, but initially there were significant delays by government in introducing reduced compensation liability arrangements. The delay was of particular significance with the complexity on which compensation could become payable making it virtually impossible to calculate in advance of instigating formal action. The overall effect of both delay and uncertainty in the financial implications of instigating action proved to be a major disincentive to planning authorities positively pursuing their duties with any degree of enthusiasm. As a consequence, only two planning authorities in Scotland completed the review process at that time.(i.e. late 1980's)
1.6 A decade later, the Planning & Compensation Act 1991 introduced requirements for the registration and upgrading of permissions granted under Interim Development Order (IDO) provisions between 1943 to 1948. These provisions had been introduced as an interim measure to authorise minerals development prior to the introduction of the comprehensive statutory planning controls of the Town and Country Planning (Scotland) Act 1947. These permissions were regarded as even more problematic than those granted in the post-1948 era. In many cases, there was little or no record of their existence where they had not been implemented, yet they continued to provide a basis on which minerals extraction could be commenced without any recourse to the planning authority. Although specific provision was made in the Town and Country Planning (Scotland) Act 1969 to restrict the life span of any extant, but unimplemented, consents granted under the 1947 Planning Act, these provisions did not extend to the earlier IDO consents.
1.7 The approach adopted in the review of the IDO permissions was fundamentally different from the previous review provisions of the 1981 Minerals Act, in so far as it placed the obligation to instigate action on the developer/mineral operator, not the planning authority. Failure to register an IDO permission within a specified period of time resulted in the loss of the consent, thus providing a strong incentive for action.
1.8 Subsequent to registration, the holders of an IDO permission were required to submit a scheme of operating and restoration conditions (consistent with modern standards of environmental protection) for the approval of the planning authority. In common with the provisions of the 1981 Minerals Act, there was no entitlement to compensation for the cost of complying with the new conditions unless such conditions restricted working rights on the site or otherwise affected its asset value. Further details of these arrangements and advice was given in Scottish Office Environment Department Circulars 2/1992 and 26/1992.
CURRENT STATUTORY PROVISIONS
1.9 Similar aspects of this approach were adopted in the Environment Act 1995, which introduced a new requirement under Section 96 for the review of old planning permissions for minerals development granted in the period 1948 to 1982. These provisions were subsequently consolidated in Section 74 and Schedules 9 & 10 of the Town & Country Planning (Scotland) Act 1997. The provisions relating to IDO permissions were incorporated in Schedule 8 of the same Act.
1.10 Schedule 9 provides for the initial review of sites in two phases where the predominant minerals permission was granted before 22 February 1982, but excluding the IDO permissions (para.1.6 to 1.8 above). Schedule 10 provides for the periodic review in the longer term of all mineral workings and their associated planning permissions. Advice on the statutory provisions and procedural matters was given in Scottish Office, Development Department Circular 34/1996, with supplementary advice offered in Circular 25/1998.
1.11 The approach adopted for the purposes of Schedule 9 is based in the first instance on a distinction drawn between active and dormant sites.
1.12 Dormant sites are those where the relevant planning permission was granted after 30 June 1948 and implemented, but no minerals development has been carried out to any substantial extent at any time in the period from 22 February 1982 to 6 June 1995. Although there is no statutory definition of what constitutes "substantial", Circular 34/1996 offers advice on the subject, and reminds planning authorities of their duty to act reasonably on the basis of factual evidence in reaching their decision in each case. This is of particular importance given that there is no general right of appeal against the authority's classification and the significance of the decision. From 1 January 1997 it is not lawful to recommence working of a site being classified dormant until the planning authority has approved a new scheme of conditions.
1.13 Active sites are the subject of review in 2 successive phases, each of 3 years.
- Phase 1 sites are those where the predominant permission(s) was granted after 30 June 1948 and before 8 December 1969. In addition, all initial review sites which are wholly, or partly, located within National Scenic Areas, Sites of Special Scientific Interest or Natural Heritage Areas are treated as Phase 1 sites.
- Phase 2 sites are those where the predominant permission(s) was granted after 7 December 1969 and before 22 February 1982.
1.14 A Phase 2 site may be reclassified during the initial review process as a Phase 1 site to reflect more urgent environmental priorities. This arises as a consequence of the provisions relating to sites potentially affecting areas designated by virtue of their scenic or nature conservation interest. It may also arise from implementation of the EU Directive 92/ 43 on the conservation of natural habitats and wild flora and fauna (generally known as the "Habitats Directive").
1.15 Under the Environment Act 1995, and subsequently the Town and Country Planning (Scotland) Act 1997, planning authorities were required, before 1 April 1997, to prepare and publish a list of all dormant, Phase 1 & 2 active sites in their areas and serve relevant notices on individual land and mineral owners. The suggested forms of notice are given in Annexes A and D to SODD Circular 34/ 1996. For Phase 1 sites the list was required to specify the date by which an application for approval of a new scheme of conditions should be submitted to the planning authority. Failure to submit by the specific date would result in the relevant planning permission(s) ceasing to have effect. This initial list assumed particular importance since in the event of a site being omitted, the relevant planning permission(s) would also cease to have effect. For this reason, land and mineral owners were given a 3 month period from the first publication date to apply to the planning authority for inclusion of any site initially omitted from the first list.
1.16 By 1 January 2000, planning authorities were required to prepare a list of active Phase 2 sites, with specific dates for submission of new conditions and following the same arrangements as those associated with the initial list.
1.17 Applications for the approval of new conditions do not require any fee, but otherwise the requirements and rights of appeal are similar to conventional planning applications. However, the planning authority has a 3 month period to make a decision on the application commencing from the receipt of all information, including additional information requested by the planning authority. In the event of the planning authority failing to determine the application within 3 months, or as may be extended by agreement, the conditions, as submitted, are deemed to be approved. These latter provisions are unique to applications for the approval of new schemes of conditions. They contrast with the equivalent provisions for conventional planning applications, where:
- the period for determination is normally 2 months commencing on the date of registration of the application;
- failure to determine the application within the statutory 2 month period results in a deemed refusal (unless agreement to an extension of time has been made).
The review case provisions have the effect of, firstly, encouraging applicants to expeditiously submit all information required by the planning authority for the purposes of decision-making. Secondly, they are intended to encourage planning authorities to take decisions expeditiously. In contrast to conventional applications where it is often in the applicants interest to agree to any extension of the statutory period, for review cases, it may be in the best interests of the applicant to refuse to agree to any such extension.
1.18 Although the nature of new conditions will vary according to the particular circumstances of individual sites, guidance and advice is given in SODD Circular 34/1996 at Annex L.
In general terms, the principal areas for which new conditions will typically be required are:
- Access, traffic and protection of the public road
- Working programme
- Hours of working
- Site restoration, aftercare & after-use
1.19 In common with conventional planning applications, the planning authority may, at any time prior to determination, require the submission of additional information. However, as a result of an IDO case, which was the subject of challenge through the English Courts (Wensley Quarries) 3 it was established that review cases constitute a "development consent" for the purposes of the EEC Directive on Environmental Impact Assessment (EIA) (EEC 85/337) as amended by Directive 97/11/EC. A subsequent English High Court ruling 4 confirmed that the Directive is also likely to apply to all review cases. As a consequence, it was considered prudent that in Scotland any application for approval of new conditions should be subject to the principles of the Town & Country Planning (Environmental Impact Assessment)(Scotland) Regulations 1999 (formerly the Environmental Assessment (Scotland) Regulations 1988). As the 1997 Act does not contain any explicit power for a planning authority to require an EIA prior to determination of a review case, SODD Circular 25/1998 advocated the use of EIA on a voluntary basis, pending legislative change.
1.20 Where a planning authority determine conditions different from those proposed by the applicant, other than provisions for site restoration and aftercare, and those conditions restrict the working rights, a separate notice must accompany the decision notice. This notice must indicate, inter alia, whether or not in the planning authority's opinion the restriction would adversely prejudice to an unreasonable degree either the economic viability of operating the site or the asset value. SODD Circular 34/1996 suggests that in such circumstances, it would be appropriate to moderate the proposed restrictions in order that questions of "unreasonable prejudice" do not arise. The significance of this advice centres on the fact that the planning authority will create a compensation liability should it impose conditions which restrict the working rights of the site.
1.21 The working rights will be restricted or reduced where any of the following aspects of the development are affected:
- The size or depth of the extraction area are reduced
- The rate of extraction or deposition is curtailed
- There is a reduction in time before expiry of the permission
- There is a reduction in the total quantity of minerals permitted to be extraction or mineral waste to be deposited.
In effect, these aspects significantly restrict the range of options available to planning authorities in reviewing individual sites and provide an important safeguard for mineral operators.
1.22 In the longer term, all mineral extraction consents (including IDO permissions) will be subject to periodic reviews every 15 years from the date of the most recent consent or the last review. It is anticipated that for most planning authorities these periodic review requirements will create an on-going rolling programme of review cases. In common with the initial review, planning authorities must give land and mineral owners at least 12 months notice of the date for submission of an application for approval of new conditions. The failure to make such a submission will result in the planning permission ceasing to have effect.
1.23 SODD Circular 34/1996 clearly indicates that in progressing the review of old mineral permissions, government expects mineral companies to demonstrate a commitment to raising environmental standards and protection. Equally, it anticipates that planning authorities should not impose onerous new conditions with the potential to adversely affect the economic viability of the mineral workings.
ENVIRONMENT AND THE MINERALS INDUSTRY
1.24 Although the current statutory provisions relating to the problems associated with old mineral permissions can be traced to origins in the 1970s, it is important to recognise that very considerable change has occurred within the minerals industry since that time. In the 1970s, the minerals industry was typified by a still relatively large nationalised coal sector, and an aggregates sector comprised of a very large number of small local companies. It had a poor public image, often based on the activities of the coal industry which had created very significant areas of derelict and despoiled land. Restoration of former quarries was the exception rather than the norm, and the quality of restoration of former sand and gravel workings was generally poor. It was against this background and increasing public awareness and concern for environmental issues that the Stevens Committee identified the weaknesses in the planning controls over such development.
1.25 Since that time the structure and nature of the minerals industry has changed significantly. In particular, economies of scale within the industry have resulted in fewer but larger production units, with an aggregates sector increasingly dominated by a very limited number of major companies. The coal industry has been privatised, rationalised and contracted very significantly in terms of production. Large amounts of public expenditure have ensured the removal of most of the former dereliction associated with the coal industry. The aggregates sector has increasingly sought to improve standards of environmental protection during working and subsequent enhancement through restoration and aftercare of sites. This has often been achieved on a voluntary basis, but has been promoted through the adoption of codes of practice. While public perception of the minerals industry remains relatively poor, in reality the industry has significantly changed based on increasing acceptance of its environmental responsibilities. As such, the review of old mineral permissions to reflect modern standards of environmental protection is not generally seen as a major issue within the industry.
AIMS AND OBJECTIVES
1.26 As indicated at 1.1 above, the general aim of this study was to confirm the progress that has been made by planning authorities and mineral operators throughout Scotland in the review of old mineral permissions as required under section 74 and schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997 and to ascertain how effective the review procedures have been in practice.
1.27 The specific objectives defined by the Scottish Executive for the research study were
- The number of dormant and "lapsed" phase 1 and 2 sites by local authority area;
- The number of completed phase 1 cases and the number still outstanding;
- The number of phase 1 cases deemed to have been approved;
- The number and current time-scale for the completion of phase 2 reviews;
- The number of cases where planning or other regulatory agreements have been used;
- The quality of conditions submitted by applicants;
- The extent to which the need for environmental information has been considered in the completed reviews, including those relating to IDOs;
- The extent of further information required from operators and details of applications determined in the absence of such information;
- The reasons why reviews have not been completed;
- The impact and potential impact upon areas designated as SACs or SPAs;
- The impact and potential impact upon SSSIs;
- The effectiveness of the review procedures;
- Resource implications of the reviews;
- Reactions and expectations of the public generated by the review process.
1.28 The study was to consider the effectiveness of the review process by reference to case studies. This was to consider the nature of the revised permissions, the extent to which authorities have achieved improved restoration and operating conditions, the nature of agreements used, the extent to which revisions have impacted on working rights, and whether compensation has been paid in such cases.
1.29 The study was additionally tasked with identifying best practice and areas where additional guidance or legislative change is required.