The Scottish Government

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Circular No. 21/1984

Previous Circulars Cancelled: 49/1977, 18/1983

Our Reference P/ACT/197 Date 3 August 1984

The Chief Executive
Regional, Islands and District Councils

Dear Sir

CROWN LAND AND CROWN DEVELOPMENT

1. The Town and Country Planning Act 1984 comes into force on 12 August 1984. A. commentary on its provisions and on those contained in the regulations made under sections 1 and 3 of the Act, which also come into force on the same day, is contained in Part I of the memorandum accompanying this circular. Section 1 of the Act enables planning permission to be sought prior to the disposal of Crown land or an interest therein. It thus makes redundant the procedure set out in SDD Circular 18/1983 by which disposing Departments sought an informal opinion from planning authorities about appropriate future uses of surplus Crown land and that circular is hereby cancelled.

2. Part II of the memorandum contains advice about the existing use of surplus Crown land.

3. Part III sets out the revised rules and procedures for the disposal of surplus Crown land (the 'Crichel Down rules') which were contained in Appendix A to SDD Circular 18/1983. They are included in this memorandum for the convenience of local authorities and because the general principles underlying those rules are commended, where appropriate, for application to local authority land disposals.

4. Part IV sets out the arrangements by which Government Departments and other Crown bodies consult planning authorities about their proposals for development. The basic procedure as set out in SDD Circular 4911977 remains unchanged but the arrangements as described in that circular have been updated to reflect the changes that have taken place in the statutory planning system over the last seven years. Circular 49/1977 is hereby cancelled.

5. Further copies of this circular can be obtained from Mr I Rutherford (Ext 5372) and any enquiry should be addressed to Mr C M A Lugton (Ext 4631).

Yours faithfully

(D J ESSERY)

MEMORANDUM

PART I - TOWN AND COUNTRY PLANNING ACT 1984

1. This part of the memorandum provides a descriptive account of the provisions of the 1984 Act.

Section 1. Application for planning permission etc in anticipation of disposal of Crown land

2. Section 253(1)(b) of the Town and Country Planning (Scotland) Act 1972 provides that:-

"Notwithstanding any interest of the Crown in Crown land, but subject to the following provisions of this section:-

(b) any restrictions or powers imposed or conferred by Part III, Part IV or Part V of this Act, by the provisions of Part IX of this Act relating to purchase notices and listed building purchase notices, or by any of the provision of sections 214 to 217 of this Act, shall apply and be exercisable in relation to Crown land, to the extent of any interest therein for the time being held otherwise than by or on behalf of the Crown."

Since Parts III and IV of the Act were not applied by this provision to Crown land in which no interest is held otherwise than by or on behalf of the Crown, Government Departments and other Crown bodies have hitherto been unable to apply for planning permission or other consents under those Parts of the Act when wishing to dispose of land. They have therefore had recourse to the procedure set out in SDD Circular 18/1983 under which an informal opinion as to acceptable future uses of land could be sought from the planning authority or, in cases of disagreement, from the Secretary of State.

The purpose of section 1 of the Town and Country Planning Act 1984 is to enable planning permission and other consents in respect of Crown land to be sought before the land is disposed of. Subsections (1) and (2) accordingly provide that the "appropriate authority" or any person authorised in writing by that authority may apply for planning permission, listed building consent, conservation area consent or a determination under section 51 of the 1972 Act in respect of any Crown land.

3. Section 6(1) gives "the appropriate authority" the same meaning as in section 253 of the 1972 Act, which -

(a) in the case of land belonging to Her Majesty in right of the Crown and forming part of the Crown Estate, means the Crown Estate Commissioners, and, in relation to any other land belonging to Her Majesty in the right of the Crown, means the government department having the management of that land;

(b) in the case of land belonging to a government department or held in trust for Her Majesty for the purpose of a government department, means that department.

4. "Conservation area consent" is defined in section 1(6) as consent under section 262A of the 1972 Act to demolish an unlisted building in a conservation area.

5. Subsection (3) provides that any permission or consent granted by virtue of section 1 shall apply only to development or works carried out after the land has ceased to be Crown land, or to development or works carried out by virtue of a private interest in the land. Section 6(1) defines "Private interest" as an interest which is not a Crown interest.

6. Where an application is made under subsection (2) for a determination under section 51 of the 1972 Act, subsection (4) effects a modification to section 51 to take account of the fact that planning permission is not required for the carrying out of development by or on behalf of the Crown.

7. Subsection (5) enables the Secretary of State to make regulations in relation to the making and determination of applications for permissions or consents in subsection (1)(a). These regulations are set out in the Town and Country Planning (Crown Land Applications) (Scotland) Regulations 1984, SI No 1984/996, which are accompanied by their own explanatory note. Attention is drawn to the fact that the regulations make no modifications to sections 38 and 39 of the 1972 Act. The duration of the planning permission will therefore run from the date on which planning permission is granted although that will be in advance of the date on which the permission can be put into effect, as explained in paragraph 5 above.

8. The effect of subsection (7) is to leave untouched the existing provision in section 253(1)(b) of the 1972 Act whereby applications for planning permission etc can be made in respect of the Crown land to the extent of any non-Crown interest in that land.

9. Planning permissions and possibly listed building consents and conservation area consents may have been granted in the past in respect of Crown land in which there was no other interest, and their validity may be thought to be in doubt. Subsection (8) removes this doubt by providing that such permission and consents shall be deemed to be valid, and always to have had effect as provided for in subsection (3).

Section 2. Tree Preservation Orders in anticipation of disposal of Crown land

10. Subsection (1) empowers a planning authority to make a tree preservation order in respect of Crown land in which there exists no interest other than the Crown's, if the authority consider it expedient to do so in order to preserve trees or woodlands on the land, in the event of the land ceasing to be Crown land or becoming subject to a private interest. Subsection (2) requires the consent of the appropriate authority to the making of the order (but Government Departments and other Crown bodies will not withhold such consent unreasonably). The order does not take effect until the land ceases to be Crown land or becomes subject to a private interest (subsection (3)). The order will not require confirmation under section 58 of the 1972 Act until after the occurrence of either of the two events which determines the effective date; and it will continue in force until the expiry of the period of six months from the effective date, or until the order is confirmed, whichever is the earlier (subsection (4)).

11. Subsection (5) requires the appropriate authority to give notice in writing to the planning authority, as soon as practicable after the land ceases to be Crown land or becomes subject to a private interest, of the names and addresses of persons who have become entitled to the land or a private interest in it. The procedure for confirming the order will then apply as if the order had been made on the date that that notice was received by the planning authority.

12. Subsection (7) provides that a tree preservation order made before 12 August 1984 in respect of Crown land in which there existed no interest other than the Crown's shall be deemed to be valid but shall have effect (and be deemed always to have had effect) only from the date on which the land ceased to be Crown land or became subject to a private interest.

Section 3. Control of development on Crown land

13. Section 3 applies to development of Crown land carried out otherwise than by or on behalf of the Crown at a time when no person is entitled to occupy it by virtue of a private interest. Where it appears that such development has taken place after the passing of the Act, ie 12 April 1984, subsection (2) empowers the planning authority to issue a "special enforcement notice" if they consider it expedient to do so, having regard to the development plan and other material considerations. Subsection (3) requires the consent of the appropriate authority to the issue of the notice (but Government Departments and other Crown bodies will not withhold such consent unreasonably). Where the planning authority propose to serve an enforcement notice in respect of an unauthorised encampment on Crown land by travelling people, the planning authority should notify the Housing Division of the Scottish Development Department at the same time as they seek the consent of the appropriate authority. This will enable the Scottish Development Department to consider whether, in the light of the Secretary of State's general policy towards unauthorised encampments of travelling people, service of a special enforcement notice would be appropriate.

14. The notice is required to specify the matters alleged to constitute development and the steps which the planning authority require to be taken for restoring the land to its previous condition or for discontinuing any use instituted by the development (subsection (4)). It will also specify the date on which it is to take effect and the period within which the required steps are to be taken (subsection (5)).

15. Copies of the notice are to be served on the person alleged to have carried out the development (save in a case where, after reasonable inquiry, the planning authority are unable to identify or trace him), on any person occupying the land when the notice is issued, and on the appropriate authority. The copies have to be served not later than 28 days after the notice is issued and not later than 28 days before it takes effect (subsection (6)).

16. Subsection (7) gives the person alleged to have carried out the development and any person occupying the land - whether or not they have been served with a copy of the notice - the right to appeal to the Secretary of State before the notice takes effect. But an appeal can be made only on the grounds that the matters alleged in the notices have not taken place or do not constitute development to which the section applies.

17. Subsection (9) secures that the provisions contained in or having effect under sections 85(2) to (5) of the 1972 Act shall apply to special enforcement notices and appeals against those notices, and enables the Secretary of State by regulations, to apply other provisions of the 1972 Act. These regulations are set out in the Town and Country Planning (Special Enforcement Notices) (Scotland) Regulations 1984, SI No 1984/995, which are accompanied by their own explanatory note. The Secretary of State does not at present intend to apply formally to special enforcement notices and appeals the relevant provisions in the Town and Country Planning (Enforcement of Control) (Scotland) Regulations 1984 (SDD Circular 6/1984 refers) and the Town and Country Planning (Inquiries Procedures) (Scotland) Rules 1980 which relate to ordinary enforcement notices issued under section 84 of the Town and Country Planning (Scotland) Act 1972. Instead, he will abide by the spirit of those provisions, as though they formally applied to "special enforcement notices" and he will expect planning authorities and appellants to do likewise. Model "special enforcement notices" will be obtainable, if required, from the Department.

Section 4. Persons in occupation of land by virtue of a contract

18. Subsection (1) provides that, for the purposes of section 253(1)(b) of the 1972 Act so far as it is applicable to planning and listed building control, and sections 1, 2 and 3 of the 1984 Act, a person who is entitled to occupy Crown land by virtue of a contract in writing shall be treated as having an interest in land. One effect of this is to make clear the situation under section 253(1)(b) of the 1972 Act by which development of Crown land, by a person with only a contract to occupy that land, is subject to planning control.

19. Subsections (2) and (3) do not extend to Scotland. They apply to both Crown land and non-Crown land in England and Wales and extend the right of appeal against enforcement notices to any person who, by virtue of a licence in writing, occupies the land or building to which the notice refers on the day the notice is issued and who is still in occupation when he submits his appeal. Persons occupying land or buildings in Scotland by virtue of a contract in writing already have a right of appeal against enforcement notices since they have an interest in the land or buildings within the meaning of sections 85 and 93 of the 1972 Act.

Section 5. Requirement of planning permission for continuance of use instituted by the Crown

20. Since the Crown is not subject to planning legislation, any use of land which it institutes is a lawful use and, subject to what is said in paragraph 1 of Part II of this memorandum, can be continued, without risk of enforcement, by a third party, eg a purchaser of the land or the owner of land of which the Crown is a lessee. Subsections (1) and (2) of section 5, however, empower a planning authority and the appropriate authority to enter into an agreement whereby a use of land instituted by the Crown which resulted from a material change of use is to be treated, when the Crown ceases that use, as having been authorised by a planning permission granted subject to a condition requiring its discontinuance at that time. The effect of this is that planning permission will normally be needed for the continuance of that use by anyone other than the Crown. The provisions of section 20(5) of the 1972 Act, however, will apply and will authorise the resumption of the use to which the land was normally put prior to the commencement of the use which is the subject of the agreement.

21. Subsection (3) ensures that the condition requiring discontinuance of use is not enforceable against a person who had a private interest in the land when the agreement was made but who was not notified by the planning authority of the making of the agreement and of the effect of subsection (2). Subsection (5) requires the agreement to be recorded in the appropriate Register of Sasines or, if appropriate, registered in the Land Register, and provides that it shall not be enforceable against successors in title unless it has been so recorded or registered.

Section 6

22. Subsection (4) of section 6 provides that the provisions in the 1984 Act shall have effect as though they were included in the 1972 Act. One effect of this is that all of the provisions of the 1972 Act which refer to a planning permission, a planning decision or a listed building consent apply to decisions given on applications made in respect of Crown land by virtue of section 1 of the 1984 Act.

PART II - EXISTING USE OF SURPLUS CROWN LAND

Existing use

1. In general, where Crown land is disposed of, the use of the land which has been carried on by the Crown can be lawfully continued by the purchaser and any buildings erected by the Crown can lawfully be retained. However, where the use was begun, or the operations were carried out by the Crown, during the "War period", as defined in the Building Restrictions (War-Time Contraventions) Act 1946, and that development did not comply with planning control, the development may be open to enforcement action by the planning authority within the period of five years beginning with the date when the Crown disposes of the land.

2. Disposing Departments will endeavour, as far as possible, to ensure that the future use of land which they dispose of will be in accordance with the current planning and environmental policies for the area. Where land is to be disposed of and its existing use conflicts with those policies, the disposing Department will draw this fact to the attention of the planning authority and will be prepared to discuss the situation with them. An agreement under section 5 of the Town and Country Planning Act 1984 may be one possibility. Authorities are however asked to bear in mind that the use in question of the buildings or the land may represent a substantial public investment and the public interest will sometimes be best served by adapting the buildings or modifying the use in some way that will render them acceptable and so avoid wasting a public asset. There may also be cases where even this course is unacceptable to the disposing Department because the cost of carrying out the necessary works would heavily outweigh the resultant benefit to the environment.

PART III DISPOSAL OF GOVERNMENT LAND TO FORMER OWNERS - CRICHEL DOWN RULES

1. This part of the Memorandum sets out the Crichel Down Rules. The rules originally applied only to land which was formerly in agricultural use; however the rules now apply to all land (including buildings), whether formerly in agricultural use or not, if it was acquired by or under threat of compulsion. A threat of compulsion will be assumed in the case of a voluntary sale if power to acquire compulsorily existed at the time, unless the land was publicly or privately offered for sale immediately before the negotiations for acquisition.

2. The rules also apply to land acquired under the blight provisions of Section 182 of the Town and Country Planning (Scotland) Act 1972 (as extended by Part V of the Land Compensation Act 1973) but not to land acquired by agreement in advance of any liability under these provisions.

3. These rules apply to all outright sales. They do not apply to disposal of land acquired under the Small Landholders (Scotland) Acts 1886 to 1931 for land settlement purposes. This is regulated by statutory provisions which provide that if land is not required for sale to sitting tenants it has to be offered back to the original owner or his successor in title at a price to be determined, failing agreement, by the Scottish Land Court. Arrangements for such disposals continue under these statutory provisions.

THE GENERAL RULE

4. Where a Government Department wishes to dispose of land to which the rules, apply, former owners will as a general rule be given a first opportunity to repurchase the land previously in their ownership provided that it has not been materially changed in character since acquisition. By material change is meant change such as the development of agricultural land with houses, afforestation of mainly open land, the redevelopment of an urban site with offices or substantial works to existing buildings which effectively alter their character. In deciding whether buildings or other works have materially altered the character of land regard will be had to the extent of the expenditure which would be needed to restore it to its original use. The erection of temporary buildings on land will not necessarily be regarded as a material change.

5. Where part of the land for disposal has been materially changed in character, but part has not, the general obligations stated above apply to the latter part only.

TIME HORIZON FOR OBLIGATION TO OFFER BACK

6. This general obligation to offer back does not apply to:

i. agricultural land acquired before 1 January 1935;

ii. other land becoming surplus and available for disposal more than 25 years after the date of vesting or date of entry if earlier.

Land will be regarded as having been acquired on the date when possession of the land was taken under a conveyance or, in the case of a general vesting declaration, the date of vesting.

INTERESTS QUALIFYING FOR OFFER BACK

7. The offer back will be made to the former owner. The term "former owner" as used in these rules is also intended to cover any successor of his, and by "successor" is meant the person on whom the property would clearly have devolved under the former owner's will or intestacy but for the Government acquisition, and may include any person who has succeeded otherwise than by purchase to the adjoining land from which the land was severed by that acquisition.

EXCEPTIONS FROM THE OBLIGATION TO OFFER BACK

8. The following are exceptions to the general obligation to offer back:

i. where it is decided on specific Ministerial authority that the land is needed by another Government Department or Agency, ie that it is not in a wider sense surplus to Government requirements;

ii. in very exceptional cases where it is decided on specific Ministerial authority that there are strong and urgent reasons of public interest for disposal of the land as soon as practicable to a local authority or public body possessing compulsory purchase powers;

iii. where a small area of agricultural land would have no satisfactory agricultural use even if used in conjunction with other agricultural land already in possession of the former owner;

iv. where it would be to the mutual advantage of the Government and an adjoining owner to make minor adjustments in boundaries by exchange of land;

v. where it would be inconsistent with the purpose of the original acquisition to offer the land back as in the case of:

a. land acquired under Sections 31 or 57 of the Agriculture (Scotland) Act 1948;

b. land acquired under the Distribution of Industry Acts, the Local Employment Acts, or any legislation amending or replacing those Acts, which is re-sold for private industrial use;

vi. where the disposal is in execution of Government policies for the transfer to the private sector of the function of providing particular services;

vii. where a disposal is in respect of either:

a. a site for development or redevelopment which comprises 2 or more previous land holdings; or

b. a site which consists partly of land which has been materially changed in character and part which has not;

and there is a risk of a fragmented sale of such a site realising substantially less than the market value of the site as a whole.

However, in such cases any former owner who has remained in continuous occupation of the whole or part of his former property (by virtue of tenancy or licence) will be given a right of first refusal in respect of that property or part of that property as the case may be; and in the first type of case special consideration will be given to any case where a consortium of former owners has indicated a desire to purchase collectively.

9. In addition, in the case of a tenanted house as indicated below, any pre-emptive right of the former owner will be subject to the prior right of the tenant.

HOUSE TENANCIES

10. Where a house, whether acquired under compulsory purchase powers or under statutory blight provisions, has a sitting tenant, the tenant will be offered the first opportunity to purchase. If the tenant does not wish to buy a former owner will be given an opportunity to purchase, with the sitting tenant continuing in occupation of the house. This paragraph does not apply to a house being disposed of with associated land as an agricultural unit.

PROCEDURES FOR DISPOSAL

11. Where it is decided that any land should be disposed of subject, by virtue of these rules, to the obligation to offer back, action will be taken to search out the former owner as follows.

WHERE FORMER OWNER'S ADDRESS KNOWN

12. Where there is a known address for a former owner he will be offered formally by recorded delivery letter the opportunity of purchasing the land. He will be given 2 months from the date of the letter to respond indicating his intention to purchase. If he fails to respond, or indicates that he does not wish to purchase, the land will be sold on the open market and he will be informed that this step is being taken. If he does wish to buy he will have 6 weeks to agree terms from the date of the formal invitation from the District Valuer to negotiate the price. The offer will be at District Valuer's valuation and if the price cannot be agreed or negotiations with one or more of the parties to a sale extend beyond the 6 week period, or any reasonable additional period allowed, the property will be disposed of on the open market.

WHERE ADDRESS NOT KNOWN

13. Where the former owner is not readily traceable the disposing Department will contact the Solicitor or Agent who acted from him on the original transaction. If the present address of the former owner is then ascertained, the procedure at paragraph 11 will be followed. If, however, an address is not then ascertained the Department will proceed to advertisement, informing the Solicitor or Agent that this has been done.

14. Advertisements inviting the former owner to contact the disposing Department will be placed as follows:

a. for all land (including houses), in not less than 2 issues of at least one local newspaper;
b. for all land, other than houses, in the Edinburgh Gazette and in the Estates Gazette;
c. for agricultural land, in the Scottish Farmer.

15. If there is no response from the former owner and nothing is heard from the Solicitor within 4 weeks from the date of the latest advertisement the land will be disposed of on the open market. If either the former owner or his agent indicates a wish to purchase they will have 6 weeks to agree terms.

SPECIAL PROCEDURE WHERE BOUNDARIES OF AGRICULTURAL LAND HAVE BEEN OBLITERATED

16. Where land to be offered back is still predominantly agricultural in character, and could be sold as such, but cannot readily be sold back in its original parcels because of the changes which have taken place, eg the obliteration of boundaries, the procedures set out in the Annex will be adopted.

TERMS OF RE-SALE

17. Disposals to former owners under these arrangements will be at an offer price reflecting current market value, as determined by the District Valuer. As to sale to sitting tenants there can be no common practice because of the diversity of interests for which housing is held. Departments will nonetheless have regard to the terms set out in the Tenants Rights Etc (Scotland) Act 1980 under which local authorities are obliged to sell houses to tenants with the right to buy.

ANNEX TO PART III

SPECIAL PROCEDURE WHERE BOUNDARIES OF AGRICULTURAL LAND HAVE BEEN OBLITERATED

1. Each former owner will be asked whether he is interested in acquiring any land.

2. Where a former owner expresses interest in doing so, every effort will be made, subject to what is stated below, to offer him a parcel corresponding as nearly as is reasonably practicable in size and situation to his former land.

3. In large and complex cases or where there is little or no room for a choice between different methods of dividing into lots - for example, because of alterations in the character of the land, existing tenancies or the need not to leave the Department with unsaleable lots it may be necessary to show former owners a plan indicating definite lots.

4. Where more than one former owner is interested in the same parcel of land, it may be necessary to give priority to the person who owned most of the parcel or, in the case of near equality, to ask for tenders form interested former owners; but every effort will be made to see that each interested former owner has an offer of one lot.

5. If a complete deadlock is reached in attempts to come to a satisfactory solution by dealing with former owners, the land will be sold by public auction in the most convenient parcels. Former owners will be informed of the date of the auction sale.

PART IV - DEVELOPMENT BY GOVERNMENT DEPARTMENTS

Introduction

1. This part of the Memorandum sets out the arrangements by which Government Departments consult planning authorities about their proposals for development. The arrangements apply to all bodies entitled to Crown exemption from the provisions of the Town and Country Planning Acts (these include Health Boards). For the sake of brevity, these bodies are referred to as "Departments" whether they are Government Departments or non-departmental authorities. The Crown Estate Commissioners have agreed to consult planning authorities about their proposals in a similar way.

Scope of consultation

2. Development by the Crown does not require planning permission. But Government Departments will consult planning authorities before proceeding with development (including material changes of use) which would otherwise require planning permission. Departments will use the General Development Order, as operating in the planning authority area concerned at the, time when a proposal is being considered, as a general guide to the kinds of development which they may carry out without consultation and will apply to their own development, mutatis mutandis, the permissions granted by the Order to private bodies, local authorities and statutory undertakers.

3. Proposals for the construction of trunk roads (including motorways) are already subject to statutory procedures laid down in the Trunk Roads Acts of 1936 and 1946, the Special Roads Act 1949, the Roads (Scotland) Act 1970 and the Acquisition of Land (Authorisation Procedure) (Scotland) Act 1947. These procedures and the associated consultations with local authorities in practice achieve the same effect as those set out in this Memorandum, and there is no need for them to be duplicated.

4. Even where consultation would not be required on the basis set out above Departments have agreed to notify the planning authority of development proposals which are likely to be of special concern to the authority or to the public; for example, where there could be a very substantial effect on the character of a conservation area, or where there could be a significant planning impact, visually or otherwise, beyond the Department's own site. In any notification of this kind the planning authority will be given an opportunity to decide whether to advertise it so as to give the public a chance to comment, and also to discuss with the Department ways in which the proposal might be amended to overcome any objections to the proposed development.

5. Departments have agreed also to bear in mind that in any event, whether or not consultation or notification is required, an early preliminary approach to the planning authority will often be useful particularly in the case of development likely to be of special local concern to the public or to the planning authority.

6. It should, however, be noted that none of these consultations or notifications can fully apply to proposals involving national security.

Method of consultation

7. When the formal stage of consultation is reached, the developing Department will send to the planning authority 3 copies of a statement of their proposal marked "Notice of Proposed Development by (Department)" providing sufficient detail to enable the authority to appreciate its nature and extent. They will also supply 3 copies of a location plan showing the relationship of the proposed development to adjoining property and, except where the proposal involves only a material change of use, 3 copies of plans of the proposed development.

8. The Notice will make it clear whether the proposal is submitted with all relevant details, or in outline only to be followed by the submission of details. If it is in outline, the Notice will specify which, if any, of the reserved matters as defined in the General Development Order, ie siting, design, external appearance, means of access and landscaping of the site, are included. The planning authority will not be expected to ask at this stage for further details except where 'this is essential to enable them to form a view on the proposed development.

9. Where the Crown does not hold all the interests in the land, the developing Department will advise the owner, lessee and any agricultural tenant, as appropriate, of the submission and contents of the Notice of Proposed Development.

Action by the planning authority.

10. The planning authority will treat the Notice in the same way as they would a statutory planning application (but see paragraph 24 for entry into the register), and, inter alia, will undertake the usual consultations. In the case of a Notice submitted to a district planning authority, details of the proposed development should be supplied to the appropriate regional planning authority, in the same way as details of planning applications are supplied in accordance with the Town and Country Planning (Planning Applications Weekly Lists) (Scotland) Direction 1984. (See Appendix A to Annex C to SDD Circular 6/1984.)

Fees

11. Notification by Government departments of their proposed developments are not subject to the fees payable on submission of planning applications.

Further information

12. Each Notice of Proposed Development sent to the planning authority may be accompanied by a copy of the form in Annex A to this part of the Memorandum. The form does not purport to give an exhaustive list of the matters that may be significant and the planning authority should take the opportunity at this stage of giving early warning of any other factors requiring special attention eg conservation area, National Scenic Areas, Sites of Special Scientific Interest etc. The planning authority are asked to complete this form as soon as possible from information already available and to return it to the developing Department before the planning aspects of the Notice are dealt with. They are asked also to bring to the notice of the Chief Roads Engineer, Scottish Development Department, any proposals likely to affect existing or proposed trunk roads (including motorways).

Publicity

13. Although development proposals of Departments are not subject to any statutory publicity, it is intended that they should be given just as much publicity as if the Notice of Proposed Development were an application for planning permission. Thus the procedure for publicity for planning applications prescribed in the Town and Country Planning (General Development) (Scotland) Amendment Order 1984, and described in Annex B to SDD Circular 6/1984, will be applicable. Similarly, planning authorities should carry out the procedures currently in force as regards press advertisements, site notices and other forms of publicity which would have applied in the case of a planning application where the development would in their opinion affect the character or appearance of a conservation area or the setting of a listed building. In this they should be guided by the principles set out in paragraphs 2.44 and 3.21-3.35 of the Memorandum on Listed Buildings and Conservation Areas issued with SDD Circular 4/1976.

Notification of planning authority's views

14. The planning authority's views on the proposed development should be sent to the developing Department within two months from the date of receipt of the Notice of Proposed Development unless the Department have agreed in writing to an extension of time. In formulating their views, the planning authority should have regard to the views of any bodies consulted and to any comments received by the authority in response to the publicity given. They should make it clear whether they find the development proposal acceptable and, if so, on what conditions (if 'any); or whether they find it unacceptable. In either case, reasons for the conditions or for considering the proposal unacceptable should be clearly stated. If no representations are received within the time limit, the Department will not assume that the planning authority do not wish to comment but will remind them of the opportunity offered for comment and the need for an early reply. In the unlikely event of continued failure to respond, the Department will notify the Scottish Development Department in accordance with paragraph 18 below.

15. SDD Circular 24/1981 (as amended by SDD Circular 6/1984) and the Town and Country Planning (Notification of Applications) (Scotland) Direction 1981 (as amended by the Town and Country Planning (Notification of Applications) (Scotland) (Amendment) Direction 1984) determine whether or not the Scottish Development Department should be notified about a particular proposal. The arrangements require authorities to notify the Scottish Development Department only about proposals in specific categories defined in these Directions. The Town and Country Planning (Development Contrary to Development Plans) (Scotland) Direction 1981 (as amended by the Town and Country Planning (Development Contrary to Development Plans) (Scotland) (Amendment Direction 1984) authorises the planning authority to grant planning permission for developments which do not accord with the development plan where the proposal has been advertised and, in the case of district or regional authorities, where they have notified the regional or district planning authority respectively and have considered any observations received from the appropriate authority. The terms of these Directions should be observed in dealing with development by Departments.

16. In any case where strong objections are received to a development proposal which has not been notified to the Scottish Development Department, it must be for the planning authority to weigh up these objections and decide whether or not they should be supported. But where they decide not to oppose the development, they should nevertheless bring the objections to the notice of the developing Department.

17. In rare cases developing Departments may need to ask for comments in a shorter period than two months. If so, they will mark the Notice "Special Urgency". The publicity arrangements will not apply to these cases and there will be a time limit for comments of 14 days from the date of receipt. Where there is no response from the planning authority, the developing Department will assume that they do not wish to comment and will proceed accordingly. The Department will, however, give the authority at least 48 hours notice, in writing, before commencing the development. Departments have agreed to use the "Special Urgency" procedure in as few cases as possible.

Method of dealing with objections or failure to respond

18. Where the planning authority object to the Notice of Proposed Development or to any detailed proposals submitted after a Notice of Proposed Development in outline, where they fail to respond (except to a Notice marked "Special Urgency"), or where there is any unresolved disagreement, the developing Department, if they wish to proceed with the proposal, will notify the Scottish Development Department submitting copies of relevant documents and plans. Any dispute about the period during which development should be started or detailed plans forwarded may also be so referred.

19. Where there has been a failure to respond, the Scottish Development Department will pursue the matter with the planning authority before proceeding as in the next paragraph.

20. The method of dealing with proposals to which there have been objections will depend upon the circumstances but in all cases the planning authority, the developing Department and other interested parties will be given an opportunity to express their views. It is expected that the written representations method will be suitable for most cases although, where there is no evidence of interest by other parties, the dispute may be resolved by means of a meeting of representatives of the planning authority and the developing Department, chaired by an officer of the Scottish Development Department. In other cases, it may be desirable to take more formal steps and to hold a non-statutory public local inquiry. The result of the Secretary of State's determination of the dispute between the developing Department and the planning authority will subsequently be notified by the Scottish Development Department by means of a letter to the planning authority. Copies of this letter will be sent to those who have submitted views. Where a public local inquiry is held, a copy of the report of the inquiry will be sent to the parties.

Time limits on start of development

21. Unless the developing Department, when submitting the Notice of Proposed Development, exceptionally ask for a longer period in which to start the development, and this longer period is agreed by the planning authority, they will start the development within five years of the authority's response to the Notice or of any determination by the Secretary of State. Where the developing Department have submitted only an outline of the development proposed, they will submit details of the reserved matters to the planning authority within three years of that response or determination or within such longer, period as may be agreed. The two month and fourteen-day time limits and provisions as to copies of documents and plans which apply to Notices of Proposed Development will apply equally to submission of the reserved matters. The period for commencement of the development will be that mentioned earlier in this paragraph or within two years from the date of agreement on reserved matters if this expires later.

22. If the developing Department do not submit details of the reserved matters or do not commence development within the appropriate period and still intend to carry out the development, they will submit a fresh Notice of Proposed Development. If this relates to the same development as before, this will be stated in the Notice and no further information or documents will be forwarded unless the planning authority so request.

Enterprise zones

23. Government Departments will, as a matter of courtesy, notify enterprise zone (EZ) authorities of proposed development in an EZ which, if carried out by someone other than the Crown, would be granted planning permission by the EZ scheme and would comply with its planning conditions. Where any aspects of the proposed developments are reserved for the approval of the EZ authority, the developing Department will send the appropriate details to the authority for their views and the dispute procedure in paragraphs 18-20 will be available if required. For proposed development which is excluded from the scheme's grant of planning permission, the procedure in paragraphs 7-25 will apply.

Register of applications

24. General and district planning authorities are required by law to keep a register of statutory planning applications. They are recommended to keep a non-statutory addendum to Part II of the register in respect of Notices of Proposed Development. It is suggested that appropriate headings for this addendum would be

(a) name of Department, date of submission of Notice of Proposed Development and particulars of the development;

(b) the decision (if any) of the appropriate planning authority whether or not to oppose the development and any conditions on which agreement was indicated;

(c) the date and outcome of any reference to the Scottish Development Department;

(d) the date and outcome of any subsequent references of details for consideration by the planning authority.

25. Where an entry is made in this non-statutory addendum to the register there should be an appropriate entry in the statutory index. The developing Department will warn the authority if in any case there are particulars which for security reasons ought not to be made available for public inspection or entered in the register.

Buildings of special architectural or historic interest

26. A Crown developer does not need listed building consent to demolish, alter or extend a building listed under section 52 of the Town and Country Planning (Scotland) Act 1972. Departments or their agents will however consult the planning authority (on the lines laid down in paragraph 7 above) about any proposal to demolish a listed building (other than one scheduled as an ancient monument or held in Departmental care under the provisions of the Ancient Monuments and Archaeological Areas Act 1979 - please see paragraph 31), or to alter or to extend such a building in a way which would affect its character as a building of special architectural or historic interest. The planning authority are asked to advertise such proposals in the same way as they would if application had been made for listed building consent. The Department's Inspectorate of Historic Buildings will be pleased to advise informally on what constitutes or affects character and on any other matters in connection with proposals affecting a listed building.

27. In any case where either the planning authority object to proposals, or where following advertisement and notification objections have been received by them, the objections should be passed on to the developing Department concerned. If the disagreement cannot be resolved and the objections withdrawn, the developing Department will inform the Scottish Development Department. The procedure will be substantially the same as in paragraph 20.

28. In the case of demolition of a listed building Departments must give notice of the proposal to the Royal Commission on the Ancient and Historical Monuments of Scotland, 54 Melville Street, Edinburgh EH3 7HF and may not undertake demolition until either the Commission have been given reasonable access to the building for the purpose of recording it for at least 2 months from the date of giving notice to the Commission or the Commission have stated that they have completed their record of the building or that they do not wish to record it. The Commission would also appreciate advance notice of any significant alterations or extensions which may be proposed to more important listed buildings so that recording may be considered.

Unlisted buildings in conservation areas

29. The Town and Country Amenities Act 1974 added a new section (section 262A) to the Town and Country Planning (Scotland) Act 1972 which brings the demolition of all buildings in conservation areas, with certain minor exceptions, under planning control. Departments will consult the planning authority (on the lines laid down in paragraph 7 above) about any proposals to demolish a building in a conservation area, except where the building is included in one of the descriptions of buildings set out in the Department's circular 28/1980.

30. Where the planning authority object to the proposed demolition, and the matter cannot be resolved to the satisfaction of both parties, the Department will bring the matter to the attention of the Scottish Development Department. The procedure to be adopted will again be substantially the same as that outlined in paragraph 20. The provisions regarding notification to the Royal Commission on the Ancient and Historical Monuments of Scotland referred to in paragraph 28 refer also to the demolition of buildings in conservation areas.

Ancient monuments and archaeological sites

31. In the case of proposed Crown development affecting (a) a scheduled monument under the Ancient Monuments and Archaeological Areas Act 1979, or (b) any ancient monument in the care of the Secretary of State for Scotland, or (c) any known archaeological remains, by reason of the development taking place in or on the monument or its remains or in its close vicinity, the developing Department will notify SDD Ancient Monuments Division, 3-11 Melville Street, Edinburgh.

Advertisements

32. Most outdoor advertisements displayed by Government Departments will be comparable to those whose display is authorised by the Town and Country Planning (Control of Advertisements) (Scotland) Regulations 1984 because they are "statutory advertisements" or traffic signs, or because they fall within other categories which may be displayed without express consent, by virtue of the provisions of the Regulations. Very occasionally, a Department may propose to display an advertisement which would require "express consent" if it were to be displayed by someone other than a Government Department. In that event, the Department will follow the procedures outlined in paragraphs 7-20 of this memorandum, adapted as appropriate for advertisement control purposes and will comply with the time limit imposed by regulation 18 on the display of an advertisement which has been granted consent. Planning authorities are asked to respond accordingly and to enter the Notice of Proposed Development in the register of applications for consent kept under regulation 31, in the way described in paragraphs 24-25 above.

ANNEX A

(paragraph 12)

DEVELOPMENT BY GOVERNMENT DEPARTMENTS

This form relates to a proposal by the [Department], reference ................................................
to undertake development at ...................................................................................................
If the answer to any of the following questions is yes, would you kindly give brief details.

1. (i) Are you aware of any other Government Department, local authority, nationalised industry, or statutory undertaking, or the National Trust for Scotland, owning or having an interest in the site or adjacent land or possessing training, firing or other rights over it?

(ii) Are you aware of proposals for any such body to develop the site or adjacent land?

2. Is there on the site or in its immediate vicinity

(i) any ancient monument on the statutory list, or shown on the 1/2500 (25 inch) or 1/10,000 (6 inch) OS maps, or known to exist from local knowledge or records, or

(ii) any building of special architectural or historic interest on a statutory list or likely to be listed?

3. Is the site in a conservation area?

4. (a) Does the site contain minerals

(i) the subject of a planning permission, or

(ii) allocated in the development plan for working, or

(iii) protected in the development plan as a reserve for possible future working?

(b) Has any opencast or deep mining taken place on or under the site?

(c) Are there any other reasons for considering that the site might contain minerals of economic importance?

(d) Is there any borehole information available for the site?

5. Is there within 1/ 2-mile any

(i) NHS hospital,

(ii) service hospital, or

(iii) private hospital?

6. Are you aware of other information in relation to the site which might be material to the development proposal, eg is the site in a green belt, an Area of Special Pollution Control, a National Scenic Area, a Site of Special Scientific Interest or in the vicinity of a hazardous installation?

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