C. GUIDANCE ON INITIAL REVIEWS
74. The Government considers that this new legislation provides an important opportunity to secure improved operating and environmental standards. Minerals are vital to the economy but it is essential that they are extracted in an environmentally acceptable way. The Government therefore look to the minerals industry in the first instance to demonstrate their commitment to raising standards, to operate as good environmental neighbours and to ensure that any adverse affects of extraction are minimised and that land is restored to a beneficial use. The Government believes that a responsible industry will wish to meet these objectives and in general expects that, in relation to active sites, planning authorities should not need to impose conditions - other than restoration and aftercare conditions - which would restrict working rights to the extent that either the economic viability of operating the site or the asset value of the site would be prejudiced adversely to an unreasonable degree except in exceptional circumstances. In this context the economic viability of operating the site would include processing operations which are wholly dependent on the availability of minerals from the site. The Government believes that in this way, and with a constructive approach on all sides, the need to provide proper protection for the environment and the amenity of local residents and the reasonable expectations of mineral operators can be accommodated without the payment of compensation.
75. Section B sets out the procedures to be followed in respect of initial reviews of mineral sites. This section gives advice on the approach to be adopted in defining mineral sites and related matters, and the considerations to be taken into account by applicants and planning authorities in preparing and determining the conditions to which permissions relating to mineral sites should be subject. It is for applicants in the first place to submit schemes of conditions for the consideration of the planning authority, and for the planning authority to determine whether the submitted conditions are acceptable or should be modified or added to in the light of the particular circumstances of the case and this guidance. Applicants have a right of appeal to the Secretary of State against the imposition of conditions different from those submitted in their application: either where they regard these as unreasonable; or, where the effect of the conditions would be to further restrict working rights, they disagree with the planning authority's determination that the effect of the further restriction would not prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site. In all cases, it is expected that applicants will seek to submit conditions which provide environmental protection and ensure that future operations are carried out to a high standard.
76. The 1995 Act provides that, in the case of Phase I and Phase II sites where no operations for the winning and working of minerals or the depositing of minerals waste have been carried out to any substantial extent in the period beginning on 22 February 1982 and ending with 6 June 1995, the site is considered "dormant". After 1 January 1997 development at dormant sites will be unlawful until a scheme of conditions has been finally determined. Such schemes of condition can be put forward for decision at any time. In the case of active Phase I and Phase II sites an application for determination of conditions must be made to the planning authority by the date specified in the appropriate list (or such longer period as the planning authority agree) or the permissions relating to the site will cease to have effect.
77. This distinction will prevent the reactivation of dormant sites without full modem planning conditions; and, will ensure that schemes that are prepared and submitted are appropriate to the circumstances pertaining at the time. Applicants should avoid preparing and submitting schemes of conditions too far in advance of their need to work dormant sites, both in their own interests and to ensure that the workload for both applicants and planning authorities is more evenly spread. Equally, where applicants can demonstrate the need to reactivate dormant sites - e.g. to meet a specific contract - planning authorities should deal with the application as speedily as possible.
78. The purpose of the initial review is to ensure that in a relatively short period of time, all valid permissions for the winning and working of minerals or the depositing of mineral waste relating to active Phase I and II mineral sites will be subject to conditions appropriate to the land use planning circumstances, having regard to the safe, efficient and economic operation of the site, and that the land covered by the permission will be suitably restored as soon as practicable.
79. The conditions which may be imposed may include any conditions which could be imposed on a grant of planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste, and may be imposed in addition to, or in substitution for, any conditions which attached to the original grant of permission. General advice on the types of conditions that may be appropriate to planning permissions is given in SDD Circular 18/1986. SOEnD Circular 26/1992 gives advice on appropriate conditions for the winning and working of minerals and the depositing of mineral waste at IDO sites. Further guidance on conditions for mineral working is given in National Planning Policy Guideline 4: Land for Mineral Working. Applicants should have regard to these and to the following paragraphs in drawing up the conditions to which they propose the relevant planning permissions should be subject. Planning authorities should have similar regard to these, and to the following paragraphs in considering applications and in determining conditions. PAN 50 gives advice on controlling the environmental effects of surface mineral workings. A further PAN on restoration, aftercare and after-use will be published shortly. In all cases, conditions should have regard to the circumstances of the particular site and should be:
- relevant to planning;
- relevant to the development;
- precise; and
- reasonable in all other respects.
The following paragraphs give advice on the particular considerations to be taken into account in defining sites and related matters and in drawing up and considering schemes of conditions for initial reviews.
Approach to Conditions for Active Sites
80. Under the approach adopted for the updating of IDO permissions, there is no entitlement to compensation for the cost of complying with any conditions imposed. However, the policy approach is that, for working sites, a distinction should be drawn between conditions that deal with the environmental and amenity aspects of working the site, which should not affect asset value, and conditions that would fundamentally affect the economic structure of the operation. Conditions that would significantly affect the asset value would be more appropriately imposed by modification or discontinuance orders, which would give rise to a compensation entitlement.
81. The approach to be adopted to the determination of conditions for active Phase I and Phase II sites should differ little from that for IDOs. The only difference is that where the planning authority determine conditions different from those submitted by the applicant; and the effect of those conditions, other than restoration or aftercare conditions, is to restrict working rights further than before the review - then, if the effect of the further restriction is to prejudice to an unreasonable degree either the economic viability of the operation or the asset value of the site, a liability for compensation will arise. In practice, the Government considers that conditions, other than restoration and aftercare conditions, which would restrict working rights to the extent of unreasonable prejudice should not be imposed except in exceptional circumstances. In the Government's view, this is little different from the IDO approach which urged against conditions that would fundamentally affect the economic structure of the operation or significantly affect asset values.
Determination of Conditions for Active Phase I and Active Phase II Sites
82. Where the planning authority do determine conditions different from those submitted by the applicant and the effect of those conditions, other than restoration and aftercare conditions, is to restrict working rights further, paragraph 10 of Schedule 13 requires the planning authority to provide certain additional information with their notice of determination of conditions. They must state, amongst other things, whether or not, in their opinion, the effect of the restriction would be such as to prejudice to an unreasonable degree either the economic viability of the operation or the asset value of the site. Whether or not the effect of a condition is to restrict working rights further will be a matter of fact. Whether such a restriction would give rise to unreasonable prejudice is a matter of judgement in each particular case. In forming their opinion the planning authority must have regard to this guidance.
83. In the first place the planning authority will have to consider on the facts whether in their judgement the effect of the new conditions would restrict working rights. In this context, the Government's intention is that there should not be a sliver of difference between the approach to conditions for IDOs and the approach to conditions for initial review sites - i.e. "that there should be no compensation for any new environmental, amenity and restoration conditions imposed" (Viscount Ullswater, Official Report Col 134, 7 March 1995). If the planning authority conclude that the effect of the new conditions would not restrict working rights they do not have to issue a separate notice and no compensation is payable. There is no right of appeal against the planning authority's judgement that the effect of the new conditions would not restrict working rights. The applicant is entitled to appeal against the determination of conditions different from those submitted if they consider them unreasonable.
84. If the planning authority conclude that the effect of the new conditions would restrict working rights, they must then consider whether the effect of the restriction would be such as to prejudice to an unreasonable degree either the economic viability of operating the site or the asset value of the site. Prejudice to an unreasonable degree clearly means that modest changes to working rights can be made without liability for compensation. Where the planning authority conclude that working rights would be restricted but unreasonable prejudice would not arise they must issue a separate notice to that effect. The applicant has a right of appeal to the Secretary of State against the planning authority's opinion. Where the planning authority conclude that unreasonable prejudice might arise, they should discuss the proposed conditions with the operator who should provide information about the economic viability of the operation and the asset value of the site. In the light of that information, the planning authority should either moderate the restriction or they must issue a notice as outlined above and be prepared for a compensation claim.
85. Neither economic viability, nor asset value are defined in the Act and, in the absence of case law, the words have their common or everyday meaning. Economic viability means the ability of a site to produce sufficient revenue to cover all of its operating costs (including finance costs and depreciation) and produce an appropriate return on capital. The asset value of the site is the remaining mineral in the ground for which planning permission exists and stockpiled material, together with the land, buildings and fixed plant and machinery. In those cases where a new planning condition would restrict working rights, for example a buffer zone between the edge of the site and residential property which sterilised some of the workable mineral reserves, the test is whether that condition would adversely prejudice to an unreasonable degree the asset value or economic viability of operating the site. In terms of asset value, this would normally mean that a significant quantity of workable mineral would have to be lost relative to the amount of workable mineral in the site for which planning permission exists. In terms of economic viability, the test is the extent to which the further restrictions imposed by new conditions would cause extra operating costs or restrict revenue to the extent that economic viability would be prejudiced adversely to an unreasonable degree.
86. In determining new conditions therefore, the planning authority should consider whether a resulting restriction on working rights would be such as to prejudice to an unreasonable degree the asset value or economic viability of the site or operation having regard to the expected remaining life of the site. If it would do so, the appropriate course would be to seek to moderate the restriction so that unreasonable prejudice does not arise. In the Secretary of State's view, if planning authorities follow the general guidance on conditions set out in the following paragraphs unreasonable prejudice should not arise. Nevertheless, each case must be determined on its merits.
87. Applicants should note that applications for determination of conditions must be accompanied by the appropriate certificates that the necessary notification requirements have been complied with, as if it were an application for planning permission for the winning and working of minerals or the depositing of mineral waste. In addition to these statutory requirements, applicants are encouraged to explain fully and as early as possible the nature of their proposals indicating the ways in which they intend to deal with the various environmental and amenity factors. Applicants are strongly advised to consult with the relevant statutory bodies, local authorities and other organisations whose interests may be affected, before submitting a formal application to the planning authority. Technical issues such as drainage, access arrangements, working methods, pollution control, restoration and after-use should also have been discussed with the appropriate bodies. Where proposals relate to larger sites or sites that may be worked over many years, it may be particularly helpful for the applicant to discuss the issues at an early stage with the local community - for example by arranging public meetings and exhibitions.
88. Similarly, whilst the provisions of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (SI 1992 No 224) as amended by SI 1994 No 329 and 1994 No 2585 relating to consultations before the grant of planning permission do not statutorily apply to these new procedures, planning authorities should have regard to these general requirements and carry out such consultations as they see fit before determining the application. In considering the need for consultations planning authorities should also have regard to any consultations carried out by the applicant prior to submission of the application and the extent to which the submitted proposals reflect the views of consultees. Unnecessary duplication of consultation should be avoided.
89. In considering the types of conditions that will be appropriate in any particular case, regard should be had to all material planning considerations including: the type of mineral; the nature and extent of existing working; the location and planning history of the site; land quality and proposed after-use; and, the availability of suitable restoration materials. For dormant sites full modem conditions will be appropriate. For active sites, the Government believes that generally conditions which deal with the environmental and amenity aspects of working the site should not have the effect of restricting working rights to the extent that either the economic viability of operating the site or the asset value of the site would be prejudiced adversely to an unreasonable degree.
90. For active sites where only a relatively small part of the total land covered by the permission has been or is currently being worked, it may be appropriate to apply full modem conditions. However, where an applicant can demonstrate the area of currently unworked land contains workable reserves, that there are definite plans for the extraction of those reserves, that the planned extraction forms an integral part of the economic viability of the operation, and that the effect of the imposition of full modem conditions would be to restrict working rights to the extent that the restriction would prejudice adversely to an unreasonable degree either that economic viability or the asset value of the site, it would be appropriate to apply a degree of flexibility if a liability for compensation is to be avoided.
91. In all cases, it will be necessary in preparing and considering schemes of conditions, to identify sensitive property and areas which are, or could be, adversely affected by the development and to seek ways in which the impact can be mitigated or avoided - for example, through the provision of buffer zones and/or baffle mounds, or restrictions on working hours and/or appropriate noise limits. Particular attention should be given to areas of environmental or ecological importance such as National Scenic Areas, Natural Heritage Areas, SSSIs, features of archaeological interest and the built heritage (see paragraphs 124-132); and, to the proximity of residential or other sensitive property such as schools and hospitals. Consideration should also be given to the need to avoid adverse effects on the quality or quantity of groundwater resources where these are particularly vulnerable or in short supply.
92. In relation to active sites, where the applicant can demonstrate that buffer zones or other limits on the extractive area cannot be complied with without prejudicing to an unreasonable degree either economic viability or asset value, the applicant and planning authority should consider whether equivalent or better protection can be provided by other means.
93. All responsible minerals developers should work their sites in an environmentally acceptable and sustainable way and able to be recognised as good neighbours. At the same time, it has to be accepted that, in some cases there will be limits to what canbe achieved without prejudicing economic viability or asset value to an unreasonable degree. Nevertheless, applicants should seek to achieve the greatest possible improvement in environmental standards and should, where possible, voluntarily offer limits on extractive areas, depths and rates of output, where this is the only way of avoiding unacceptable environmental damage. In all cases, applicants are encouraged to discuss their proposals for the operation and restoration of the site with the planning authority at an early stage, and well before submitting a formal application. Planning authorities should be prepared to respond positively to such approaches. In this way many issues can be resolved by constructive negotiation.
94. The requirements to apply for determination of conditions apply only to permissions for development consisting of the winning and working of minerals or involving the depositing of mineral waste. However, a condition imposed on an initial review following an application for determination of conditions, may include any condition which may be imposed on a grant of planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste. Such conditions may include any conditions which a planning authority thinks fit, including conditions for regulating the development or use of any land for the purposes of or in connection with the development authorised by the permission. Nevertheless, the power to impose planning conditions is constrained by the general limitations imposed by the Courts i.e. that any condition must fulfil a planning purpose, must fairly and reasonably relate to the development permitted and should not be manifestly unreasonable.
Ancillary Mining Development
95. The intention is that reviews should include such development only in relation to land used as a mine or quarry and ancillary mining land, as defined in Part 16 of Schedule 1 to the 1992 General Permitted Development Order. Reviews should cover ancillary mining development which gained its permission from Part 16 of the 1992 Order (and its predecessors); permissions for ancillary mining development granted as part of a consent for the winning and working of minerals or the depositing of mineral waste; and, specific planning permissions for ancillary mining development in so far as the development permitted would otherwise have been acceptable under the 1992 GPDO or its predecessors - i.e. where the original permitted development rights had been withdrawn and a separate planning permission for the development otherwise permitted had been granted in its place, or where separate planning permission had been granted for development which would now be permitted under the 1992 GPDO but which would not have been permitted under its predecessors.
96. This would exclude on-site cement works and brickworks from review and also all remote processing plant. It would also exclude processing plant at a mine or quarry where winning and working has ceased but the plant is continuing to process material from other active mines or quarries.
97. New conditions following a review could:-
(a) withdraw permitted development rights for future ancillary development;
(b) impose conditions regulating the future operation of existing ancillary development, provided that the predominant use of the ancillary development is in connection with the development authorised by the permission for winning and working of minerals or the depositing of mineral waste and that the imposition of such conditions is expedient for the purposes of the development so authorised and fairly and reasonably relates to that development;
(c) require the removal of ancillary development only as part of a restoration condition once mining operations ceased.
98. Conditions could not require the removal of ancillary development which is not primarily related to the permission for winning and working of minerals or the depositing of mineral waste and which may need to continue operating, or is capable of continuing to operate, after winning and working or depositing has ceased.
99. Permitted development rights should not be withdrawn nor should restrictions be placed on them unless there are exceptional and sound planning reasons for doing so; and, in relation to active sites, conditions should not place restrictions on the future operation of existing ancillary development which would have the effect of restricting working rights to the extent that the economic viability of the operation or the asset value of the site was prejudiced adversely to an unreasonable degree, except in exceptional circumstances.
100. Some minerals permissions have conditions requiring landfill with non-mineral waste. Other sites may have a permission for minerals development and a separate permission for landfill. In the former case, conditions imposed on the permission for winning and working of minerals may impose new, or alter existing, conditions relating to the landfill element. However, if the effect of the new conditions were to restrict working rights to the extent that either the economic viability of operating the site or the asset value of the site would be adversely prejudiced to an unreasonable degree, a liability to compensation will arise. Separate planning permissions for landfill are not subject to review if they do not constitute development involving the depositing of mineral waste whether or not that landfill is taking place in a mineral void.
101. In order to implement fully the EC Framework Directive on Waste (Council Directive 75/442/EEC, as amended by Council Directives 91/156/EEC and 91/692/EEC), the Waste Management Licensing Regulations 1994 also make provision to ensure that waste recovery or disposal operations, which already had a permit granted before the commencement of the Regulations on 1 May 1994, meet the objectives of the Directive. The Regulations therefore enable pollution control authorities (formerly WRAs and from 1 April 1996 the Scottish Environmental Protection Agency) to review existing licences in order to meet all the relevant objectives where planning permission for a waste recovery or disposal development was granted before 1 May 1994, or where no planning permission is required.
102. Where an old permission for mineral working also provides the permission for landfill disposal of "controlled wastes", the new schemes of conditions can and should include suitable restoration and aftercare conditions as defined under minerals planning legislation. Where the planning permission for waste disposal is separate from that for mineral working, initial review schemes of conditions (and further periodic reviews) should not include the landfill. However for such landfills, the 1994 Regulations enable conditions such as soil replacement, seeding and planting of vegetation and other aftercare "steps", to be covered in a review of the licence by the WRA, now SEPA.
Principles to be Applied to the Preparation of Schemes of Conditions and to their Consideration by the Planning Authority
103. The illustrative guide to conditions in Annex L should assist applicants in preparing their applications. It is to be hoped that the guide will be generally appropriate to all dormant and active Phase I and II mineral sites, but the nature of the conditions applicable, and the extent to which they will be necessary, will vary according to the particular circumstances. In considering submitted schemes therefore, planning authorities must look at each case on its merits, having regard to the considerations outlined above and to the general principles set out below.
Conditions relating to access, traffic and protection of the public road
104. Conditions dealing with measures to prevent dust, mud and spillages on the public road will be appropriate to all sites, and conditions relating to the display of agreed vehicle routes may be appropriate to some sites. It will not generally be appropriate to expect the construction of new accesses or exits to active sites, except where this can be accomplished without significantly affecting the structure of the existing operations or design of the quarry. Nor would it be appropriate to expect a new access to be provided on land which is not under the control of the applicant: although it is always open to an applicant to offer to negotiate a new access as part of the application package. It should also be borne in mind that problems with existing accesses and exits may be reduced by minor alterations to the design (e.g. improved visibility splays, or ensuring that traffic can only turn one way). Offers are sometimes made by mineral operators to restrict their lorries to particular routes. Such schemes have proved successful but all lorries calling at a site are unlikely to be in the control of the operator and planning conditions are not an appropriate means of controlling the right of passage over the public road. Although negatively worded conditions which control such matters might sometimes be capable of being validly imposed on planning permissions, and planning agreements tied to the continued use of the site to ensure lorries take a certain route are not necessarily unlawful, both are likely to be very difficult to enforce effectively. A simple way to control how lorries approach a site may be either by short local lengths of lorry ban or short local lengths of traffic calming, provided respectively by the local traffic authority and the local roads authority who are the same authority as the planning authority from 1 April 1996.
105. Working programmes should be produced for all sites to ensure that operations are designed in such a way as to protect areas of environmental and ecological importance and the amenity of nearby residential and other sensitive property. Conditions, other than those submitted by the applicant, which would further limit extraction areas or further restrict depths of working should generally only be imposed where the effect of the new restriction would not prejudice to an unreasonable degree the economic viability of the operation or the asset value of the site. Consideration should be given to whether equivalent or better protection can be provided by other means - e.g. through the control of noise and dust levels - without giving rise to unreasonable prejudice.
106. Conditions should not place limits on the annual output from active sites to control the rate at which the resource is depleted. However, it should also be recognised that these permissions may have been granted at a time when available technology would have restricted the rate at which extraction could take place and the amount of traffic leaving the site. Existing accesses may not be suitable to take significant increases in traffic volumes because, for example, of the proximity of residential property. Where such problems cannot be resolved by alterations to access roads or by other means, it may be appropriate in some cases to impose conditions limiting the rate of output to preclude substantial increases in traffic in the future. Any such conditions should not place inflexible limits on the annual output from the site, but should relate to an average annual output over a period of years to enable the operator to respond to the demands of the market. Conditions which significantly restricted the rate of output which could be achieved from the quarry to the extent that the economic viability of operating the site would be prejudiced to an unreasonable degree would give rise to a liability to compensation.
107. In deciding what conditions are appropriate on working hours, it should be remembered that it is not the hours of working themselves which cause disturbance but the environmental effects associated with the operation - e.g. traffic, noise, dust etc. Restricting working hours may not therefore achieve environmental improvements if production is intensified during the shortened working period. Mineral extraction and associated processing may require a complex shift system to enable the operator to respond to the demands of the market. Significant restrictions on the hours currently worked at active sites e.g. forcing a reduction from 2 shift working to single shift working, might restrict the rate at which the mineral may be extracted and thus be subject to the test of unreasonable prejudice.
108. Nevertheless, it is important that permissions should be subject to conditions governing working hours. Applicants and planning authorities should therefore have regard both to the illustrative guide to conditions on working hours in Annex L, and to the circumstances of the particular case including the current working hours of the application site and of other mineral sites in the area. Where the existing or proposed working hours of a site are reasonable, conditions should ensure that these are adhered to. Longer working hours, including 24 hour working, may be acceptable where the location of the site and/or other conditions can ensure that residential and other sensitive property do not suffer adverse effects. In other cases, consideration should be given to whether there is scope for achieving environmental improvements e.g. by requiring later starts and/or earlier finishes than are currently operated at the site, bearing in mind that limits, which might constitute a working rights restriction giving rise to unreasonable prejudice, should generally be avoided. Consideration should also be given to whether conditions limiting noise levels and traffic movements at different times of the day and night can provide equal or better protection.
109. Reasonable restrictions on working hours combined with appropriate conditions on noise, dust and traffic levels, may provide a preferable solution to minimising the impact on nearby property than the imposition of buffer zones if the effect of the conditions would not restrict working rights to the extent that either economic viability or asset value would be prejudiced to an unreasonable degree.
110. Noise conditions should be attached to permissions limiting the impact of noise on sensitive properties at different times of day. That is, limits should be set so that noise levels at sensitive properties do not exceed a certain range during specified periods. Noise limits should be set at the site boundary or sensitive property at a level to ensure that the noise reaching the relevant properties falls within the specified range, and so that monitoring can take place on land controlled by the mineral operator or at the noise sensitive property itself. Applicants and planning authorities should have regard to the advice in SDD Circular 23/1973 Planning and Noise. Further advice on the control of noise at surface mineral workings is published in Annex A: The Control of Noise at Surface Mineral Workings to PAN 50: Controlling The Environmental Effects of Surface Mineral Workings. Noise conditions would rarely constitute a restriction on working rights, but where the applicant can demonstrate that the only way of complying with an intended noise condition is by reducing the working area or rate of extraction to such an extent that economic viability or asset value would be prejudiced to an unreasonable degree the planning authority and operator should seek to moderate the condition. In this connection, it should be remembered that the use of silencers on vehicles, acoustic screens and good site management and design can do much to moderate noise emissions.
Conditions for Reclamation of Sites - Landforms, Restoration, Aftercare and After-use
111. Where a site is already subject to satisfactory conditions providing for restoration and aftercare there should be no need to alter them. In all other cases, appropriate restoration and, where relevant, aftercare conditions should be imposed and provision should be made for reclamation to an appropriate after-use as soon as practicable. As with all conditions, restoration and aftercare conditions should be reasonable having regard to the circumstances of the particular case. The type of restoration that will be appropriate in any particular case will depend, amongst other things, on the nature and extent of existing workings and the availability of suitable restoration materials. Clearly grandiose schemes which pay no regard to what is feasible or practicable in the circumstances will not be reasonable.
112. A Planning Advice Note is in preparation on restoration, aftercare and after-use of surface mineral sites.
113. The majority of mineral workings are reclaimed for agriculture, forestry or amenity after-uses, and applicants should consider which of these options would be most appropriate. "Agriculture" is defined in Section 275 of the 1972 Act. "Forestry" in this context means the growing of a utilisable crop of timber. "Amenity after-use" is a broad category which includes open grassland for informal recreational use, basic preparation for more formal sports facilities, amenity woodland, lakes for water recreation, water storage and balancing reservoirs, and both wet and dry areas for nature conservation and landscaping. Any other after-uses, such as residential or industrial development, or buildings and infrastructure associated with formal sports and leisure facilities, would require a separate planning permission, as would the use of the void for the disposal of controlled waste. In the latter case a licence will also be required formerly from the Waste Regulation Authority (WRA) now SEPA from 1 April 1996 under the Waste Management Regulations 1994, which implement Part II of the Environmental Protection Act 1990. Advice on this can be found in SOEnD Circular 10/1994, in Waste Management Paper No.4 (1994 edition) and NPPG 10 Planning and Waste Management (March 1996).
114. In some cases an applicant may wish to put forward a scheme of conditions which includes changing the present intended after-use of a site, for reasons such as that the change would be more in keeping with current best technical practices or the planning policies for an area. Examples might be to restore land to an amenity after-use, to forestry, or to a mix of after-uses, rather than solely to agriculture. In other cases the existing conditions attached to the planning permission may not specify an after-use, and the new scheme should remedy this deficiency. It may also be desirable to confirm, before a detailed scheme is put forward, that an existing intended after-use remains appropriate. The preparation, and consideration by planning authorities, of schemes of conditions for initial review sites are not subject to the formal consultation procedures which apply to new planning applications for mineral developments. However, particularly for larger sites, it may be valuable for an applicant to seek early informal advice from The Scottish Office Agriculture, Environment and Fisheries Department (SOAEFD) - if it is considered that there should be a change towards or away from agriculture as the intended after-use of all or part of a site, or to confirm that agriculture remains the appropriate after-use. Similarly, advice from the Forestry Commission may be sought in respect of forestry after-use. Planning authorities may also wish to seek advice from SOAEFD or the Forestry Commission in determining schemes of conditions.
115. There is no equivalent statutory consultee for the broad range of "amenity" after-uses. However useful contacts for particular schemes include Scottish Natural Heritage, the Forestry Commission, The Scottish Sports Council, the Scottish Wildlife Trust, the Royal Society for the Protection of Birds (RSPB), and the Game Conservancy.
116. The appropriate level of detail specified in conditions or set out in accompanying schemes will vary according to the circumstances of the particular case. More detail should be provided for shorter life sites (e.g. where mineral extraction or the depositing of mineral waste will cease, or restoration is due to start, within 5 or 10 years of the review). For sites which will continue for a longer period, it may be preferable to have conditions which require the mineral operator to submit detailed schemes for final landform/contours of the site, restoration (i.e. replacement of soil materials) and aftercare (i.e. management of the restored soils and planting and maintenance of vegetation) when a particular phase has been reached or at a set date or dates. There should also be provision to ensure that the mineral operator will bring forward and implement a scheme for final landform, restoration and aftercare should the site cease operation for any reason before the end date as contained in the time limit condition.
117. It is normally expected that applicants will make provision for full restoration and also aftercare in accordance with the proposed after-use. However, the type of restoration that will be appropriate in any particular case will depend on a number of factors: in particular the nature and extent of existing workings and the availability of suitable restoration materials. In preparing and considering restoration and aftercare proposals regard should therefore be had to:
a. the type of mineral or mineral waste;
b. whether or not the site is currently operational and extraction/tipping has already taken place over a major part of the whole area;
c. the existing or proposed depth of excavation and the relationship between this and the level of the water table;
d. the long term stability of faces at sites which are to remain unfilled or partly filled;
e. the desirability of conserving features of geological interest;
f. the nature and amounts of soils and soil-making materials available within the site (including unworked land) and their suitability for growing vegetation for the intended after-use (e.g. whether there are any particular chemical or physical problems or, for some older-established sites and/or hard rock quarries, the lack of much soil making materials);
g. the nature and amount of mineral waste to be generated on site and whether it is to be backfilled into a mineral void;
h. whether there is an existing licence to deposit controlled waste as landfill within the site, and the conditions attached to this;
i. the topography, altitude, climate, landscape features and wildlife habitats of the site;
j. the general character of, and planning policies for, the surrounding area;
k. the options for future management of the landscape created by restoration proposals.
118. Aftercare can only be used to bring the land to a required standard which is defined in general terms according to the intended after-use. In respect of sites where an agricultural after-use is proposed, it is recommended that SOAEFD be consulted before the planning authority gives its decision on tile scheme of conditions. SOAEFD may wish to carry out an inspection particularly where large parts of a site remain undisturbed and currently in agricultural use, especially if it is high quality land. The "required standard" would be as in sub paragraph (9) of Section 27A of the 1972 Act as inserted by the 1981 Act. In other cases, the appropriate "required standard" to be achieved at the end of any aftercare period will be that the land is "reasonably fit for that use" as in sub-paragraph (10) of Section 27A of the 1972 Act.
Consents required from other statutory agencies
119. Planning permissions do not convey any consents that may be required from other statutory authorities. Equally, planning conditions should not seek to control matters that are the proper concern of other statutory agencies, except where planning interests are clear and the conditions in the non-planning consents, authorisations or licences are not sufficient to protect those interests. This is particularly relevant in the field of pollution control. Care should be taken therefore to avoid conditions on matters which the relevant pollution control authority (such as the Scottish Environmental Protection Agency (SEPA) or the Health and Safety Executive) judges can be satisfactorily regulated under their own separate powers. However, there may be circumstances when planning conditions may properly overlay matters that are subject to other statutory controls e.g. to limit noise levels to avoid statutory nuisance action being taken at a later date, or where the pollution control standards for the particular operation or process are insufficient for the site in question when the environmental effects of the development as a whole are considered. Before proposing or imposing conditions which are primarily related to pollution control applicants and planning authorities should consult the appropriate pollution control authority. Prescribed processes taking place on active sites will of necessity be covered by EPA authorisations and aqueous discharges by COPA consents. Reviews of planning conditions will not affect these aspects.