The Scottish Government

Circular 25/1998

REVIEW OF OLD MINERAL PERMISSIONS AND ENVIRONMENTAL IMPACT ASSESSMENT

NOTES FOR GUIDANCE

The Chief Executive Local Authorities
Copy to: The Director of Planning
Our ref: PGJ/5/7
November 1998

Planning Series:

National Planning Policy Guidelines (NPPGs) provide statements of Government policy on nationally important land use and other planning matters, supported where appropriate by a locational framework.

Circulars, which also provide statements of Government policy, contain guidance on policy implementation through legislative or procedural change.

Planning Advice Notes (PANs) provide advice on good practice and other relevant information.

Statements of Government policy contained in NPPGs and Circulars may, so far as relevant, be material considerations to be taken into account in development plan preparation and development control.

INTRODUCTION

1. The Court of Appeal ruled in the Wensley Quarries case (RvNorth Yorkshire County Council exparte Brown and Cartwright) that the determination of applications for new planning conditions under Schedule2 of the Planning and Compensation Act 1991 (in Scotland, these provisions were subsequently incorporated into the Town and Country Planning (Scotland) Act 1997 ("the Act") at PartII of Schedule8), constitutes "development consent" for the purposes of the 1985 EEC Directive on Environmental Assessment (Directive85/337/EEC). The effect of this ruling is that English MPAs must consider the need for EA in all such cases and require (under Article5 of the Directive) EA for those projects likely to have significant environmental effects before development consent can be granted. Where EA is needed it must be carried out before new conditions can be determined.

2. North Yorkshire County Council (NYCC) have obtained leave from the House of Lords to appeal against the decision of the Court of Appeal. At the time of preparation of this guidance the House of Lords had not heard the appeal. The Court of Appeal judgement is not legally binding in Scotland. However, because of the identical legislative framework and the equal applicability of the EC Directive, it must be assumed that the ruling is of similar relevance to Scotland.

3. The Secretary of State is therefore drafting, on a contingent basis, regulations under Section2(2) of the European Communities Act 1972 to adapt the review procedures in the Act to enable requirement of EA in appropriate cases. Any such regulations can only apply to applications for determination of conditions made on or after the regulations come into force. The Secretary of State will be consulting on draft regulations as soon as possible. In the meantime the following approach should be adopted in relation to current applications and appeals.

4. The Secretary of State cannot give an authoritative interpretation of the law; that is a matter for the Courts. However, it is hoped that this guidance will be of use to authorities and the minerals industry in the preparation and consideration of applications for the determination of conditions under Schedules8, 9 and10 of the Act made in the period before the new regulations come into force.

WHAT IS THE PROBLEM?

5. The Appeal Court emphasised that its conclusion was specific to the statutory scheme under consideration (the review of IDO permissions under Schedule8 of the Act). However, the Secretary of State considers that its reasoning must apply also to Old Mineral Permission (OMP) reviews under Schedule9 as these follow a virtually identical process to IDOs, and to Periodic Reviews under Schedule10.

6. It was common ground between the parties before the Court of Appeal that the EEC Directive had direct effect; iethat the provisions of the Directive apply regardless of whether they have been transposed into UK domestic law. However, in the Secretary of State's view the Directive can have direct effect only to require authorities and him to use the powers they already enjoy under the legislation in such a way as to give effect to the Directive, in so far as it is possible.

7. A particular difficulty arises from the structure of the present statutory schemes. In most schemes for the award of development consent if a developer fails to supply information, and the competent authority refuses to grant development consent, the consequence is that the developer cannot proceed with the project. In the case of reviews of old mineral permissions, however, failure by an authority to determine an application for conditions results in the confirmation of the conditions proposed by the developer (see paragraph14(6)(b) of Schedule8; and paragraph9(8) of Schedule9): in other words development consent for the project is granted.

8. Similar, though slightly different, difficulties would arise were the Secretary of State to refuse to determine an appeal unless the developer supplied the information required by Article5 of the Directive. The consequence would be that the appeal would remain pending, and the original conditions, if any, would continue to apply.

DEALING WITH THE PROBLEM- A VOLUNTARY APPROACH

9. Projects which require EA under the Directive (ieSchedule1 projects, and Schedule2 projects likely to have significant effects on the environment), must be made subject to an environmental assessment before development consent is given. In the context of old mineral permissions, the Secretary of State takes the view that in determining whether a project is likely to have significant effects on the environment, it is that part of the project which remains to be carried out that is relevant. It follows, therefore, that an EA must supply information about the effects of the whole of the mining operation yet to be carried out.

10. However, Schedules8, 9 and10 of the Act do not contain any explicit power for an authority to require EA before determining an application for new conditions and, conversely, provide that where an authority fails to determine such an application within 3months (or such longer period as the applicant may agree in writing) the conditions submitted by the applicant are deemed to be approved. Similarly, whilst the 3month time limit does not apply to the Secretary of State's determination of appeals, the Secretary of State has no explicit power to require EA.

11. The Secretary of State therefore strongly advises that the best approach for both the industry and authorities is voluntarily to apply the principles of the Environmental Assessment (Scotland) Regulation 1988. That is, where the authority indicate that the project is one which they believe should be subject to EA, the applicants should voluntarily carry out EA and submit an Environmental Statement (ES) within a reasonable timescale and agree an extension of time for the authority's determination of their application once the ES has been submitted. Similarly, the Secretary of State expects appellants to respond positively to requests where he considers EA necessary in relation to appeals where one has not been carried out previously.

12. Where an authority indicates that they do not consider EA necessary they should proceed to determine the application in the normal way. The Secretary of State will adopt a similar approach in respect of appeals.

13. The Secretary of State hopes that the minerals industry will co-operate fully with a voluntary approach, not least in view of the forthcoming general application of the requirement for the need for EA to be considered when the 1997 Amending Directive on EA (Directive97/11/EC) takes effect in the UK on 14March 1999.

14. However, failing a fully voluntary approach, the Secretary of State considers that the following procedures can, and should be adopted.

15. Authorities must consider in relation to each application whether the project for which consent is sought is likely to have significant effects on the environment. If so, and the application does not contain the information required by Article5 of the Directive, authorities must request that information from developers.

SCHEDULE 8 OF THE 1997 ACT

16. Although there is no express statutory basis for such requests under the Act the Secretary of State considers that there is an implicit power to require any additional information necessary to determine an application. Authorities should accompany their requests with an invitation to the applicant to agree an extension of time. However, even where an extension of time is agreed, an authority cannot wait indefinitely for information to be provided, because to do so would be to prolong indefinitely the continuance of the existing conditions. Accordingly, if the information required to make an environmental assessment is not provided within a reasonable period, or the applicant refuses to agree an extension of time the MPA should impose the conditions necessary to protect the environment on a precautionary basis by considering the possible effects of the project, assuming the worst case applies, and formulating conditions accordingly.

SCHEDULES 9 AND 10 OF THE ACT

17. In relation to applications, the Secretary of State takes the view that the powers in paragraph9(9) of Schedule9 or paragraph6(8) of Schedule10 are sufficiently wide to request the necessary information. Where these powers are used, it may not be necessary to agree an extension of time, because time runs from the date on which the authority receives the information requested. However, again, if the information required to make an environmental assessment is not provided within a reasonable period, or the applicant refuses to agree an extension of time (if required) the authority should impose the conditions necessary to protect the environment on a precautionary basis.

18. In relation to sites classified as dormant sites under Schedule9 of the Act, it should be remembered that because working cannot lawfully recommence until new conditions have been determined, a request for environmental information under paragraph9(9) would prevent reactivation of the site until the necessary information had been supplied and new conditions determined.

APPEALS

19. In the case of appeals, the Secretary of State considers that there is an implicit power for him to request additional information necessary to determine the appeal.

20. The Secretary of State would not expect it to be necessary to require EA in every case. But where no consideration has been given to the need for EA at the application stage, he will wish to assess whether EA would be appropriate before determining the appeal. Where the Secretary of State considers that EA is necessary he will request the appellant, within a reasonable timescale, to provide the information required by Article5. This will be dependent on the complexity of the case, but is not likely to be less than 4months.

21. If the required information were not provided by the appellant within a reasonable timescale, the Secretary of State considers that it would be open to him to conclude that the appellant was responsible for undue delay within paragraph18(3) of Schedule8 of the Act; and, after giving the requisite notice, to dismiss the appeal or determine the appeal in accordance with the precautionary principle.

REFERENCE OF APPLICATIONS TO SECRETARY OF STATE

22. In the case of applications referred to the Secretary of State under paragraph19 of Schedule8, or under paragraph13 to Schedule9 or paragraph8 to Schedule10, he considers that there is an implicit power under the Act for him to require information, whether in respect of EA or anything else, and that he is entitled to request the information required by Article5 of the Directive. Where the Secretary of State considers that EA is necessary before determining an application that has been referred to him, he will ask the appellant to supply that information. If the appellant refuse to supply the information, or refuses to do so within a reasonable timescale, he will determine the application in accordance with the precautionary principle.

CONDITIONS, APPLICATIONS AND APPEALS ALREADY DETERMINED WITHOUT CONSIDERATION OF THE NEED FOR EA

23. Minerals review cases which have already been determined under the Act, and which are outside the judicial review time limits, cannot be subject to judicial review without the leave of the Court. Those cases which are still within the judicial review time limits may be open to judicial review, as may any cases determined without consideration of the need for EA in future. Interested parties should always seek their own legal advice about the course to be followed in particular cases.

COMPENSATION

24. The compensation regimes for reviews of mineral planning permissions under the Act are unaffected by the Wensley Quarries judgement and have not changed. Should consideration of environmental information result in conditions which incur a compensation liability it remains payable by the authority.

FURTHER COPIES AND ENQUIRIES

25. General enquiries about this Circular should be addressed to IanMitchell, The Scottish Office Development Department, Planning Division, 2-H32, Victoria Quay, Edinburgh, EH66QQ (Telephone0131-244-7062). Further copies and a list of current planning Circulars may be obtained from MissKelly Wood at the same address (Telephone0131-244-7066).