REVIEW OF OLD MINERAL PERMISSIONS

EXECUTIVE SUMMARY

This report presents the findings of a research study into the review of old mineral permissions in Scotland. The aim of the study was to assess the progress that has been made in the review of old mineral permissions as required under section 74 and schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997 and to ascertain how effective the review procedures have been in practice.

Context

The problems associated with old mineral permissions, first identified in the Stevens Report (1976), centred on the fact that conditions imposed on planning permissions granted in the past typically failed to meet current standards for environmental protection.

The issue was first addressed through the Town and Country Planning (Minerals) Act 1981. This placed a duty on planning authorities to periodically review mineral sites in their area, and make use of modification and other orders available to them as deemed necessary for the updating of the relevant consent. It was generally accepted that this first attempt to review old mineral permissions failed to achieve its intended purpose.

The Planning and Compensation Act 1991 introduced requirements for the upgrading of mineral permissions granted under Interim Development Order provisions between 1943 to 1948. The approach adopted fundamentally differed from that of the 1981 Act, insofar as it placed the obligation to instigate action on the mineral operator/ owner. Failure to register an IDO permission within a specified period of time resulted in the loss of the consent.

A similar approach was adopted in the Environment Act 1995, which introduced a requirement for the review of old mineral permissions granted in the period 1948 to 1982. These provisions were subsequently consolidated in section 74 and Schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997.

The current review process is based on a distinction drawn between active and dormant mineral workings. For dormant sites, no minerals development may be lawfully carried out until such time as a new scheme of conditions has been submitted to, and approved by the planning authority. For active sites the review was progressed in 2 successive three-year phases.

Phase 1 sites are those where the predominant permission was granted between 1948 and 1969, but also includes sites within various designated areas of scenic or nature conservation interest
Phase 2 sites are those where the predominant permission was granted between 1969 and 1982

By April 1997, planning authorities were required to publish a list of all 3 categories of sites, with dates established for the Phase 1 site submissions of new schemes of conditions. By January 2000, Phase 2 site submission arrangements were established in a second published list. In addition, provisions are established for the periodic review of all minerals permissions every 15 years.

Failure to submit an application for the approval of new conditions by the specified date results in the relevant planning permission ceasing to have effect, placing a strong incentive on mineral operators/owners to instigate the review process. Failure on the part of a planning authority to issue a decision within 3 months (which may be extended by agreement) results in the deemed approval of the conditions as submitted. Any new condition that places restrictions on the working rights of a site creates a compensation liability on the planning authority.

Generally, the principal areas for which new conditions will typically be required are:

Access, traffic and protection of public roads
Site working programme and arrangements
Noise
Hours of working
Site restoration, aftercare and afteruse

Research Methodology

The study involved the collection and analysis of both quantitative and qualitative data derived from:

A questionnaire survey of all planning authorities
Case studies of both individual site review cases and approaches to the review adopted by planning authorities
Structured interviews with selected planning authorities and representatives of the minerals industry
Selective review of planning registers

Main Findings

The statutory requirements for the review of old mineral permissions have resulted in significant progress towards ensuring that such permissions have been updated to reflect current expectations for protection of the environment consistent with best working practices
The current statutory provisions have been effective in addressing problems inherent in the initial arrangements for review established in the Town and Country Planning (Minerals) Act 1981
The review process has been the subject of considerable delay, which varies significantly between different planning authorities across Scotland. Although the scale of the review task varies significantly between planning authorities, there is no relationship between progress in completion of the review and the workload requirement. The principal factors influencing progress are the complexity of individual cases, staff resources and relative priorities within planning authorities.
The effectiveness of the review procedures appear to centre on the opportunity provided for dialogue and reappraisal of the working arrangements and planning circumstances relevant to each site

Recommendations

Legislative change for consideration by the Scottish Executive

(a) It is recommended that the provisions of Schedules 9 and 10 of the Town and Country Planning (Scotland) Act 1997 be reviewed, specifically to address the following aspects:

To establish deadlines for the completion of Phase 1 and 2 site reviews
To clarify the status of review submissions as planning applications
To amend the requirements for consultation by establishment of relevant statutory consultees for review applications
To introduce requirements for notification of all review applications to the Scottish Executive, and an associated provision for referral
To introduce requirements for publication of a new third list covering all periodic review sites (including potential review cases)
To extend the statutory period for determination of all review applications to 4 months to provide consistency with EIA requirements, regardless of whether or not EIA is adopted in individual cases

(b) The study supports current proposals for the amendment of the Town and Country Planning (Environmental Impact Assessment)(Scotland) Regulations 1999 to specifically require the screening of all review cases. The associated advice should clearly indicate that all review cases will normally be subject to EIA, unless there are particular circumstances which would justify otherwise. Such amendment should establish a commencement date, at which time all review cases will become subject to this provision.

Revised guidance for consideration by the Scottish Executive

It is recommended that Circular 34/ 1996 be reviewed as a matter of some urgency. Such review should seek to update the form and nature of guidance offered, and be rolled forward to remove those elements which are simply of historic interest (for example, reference and advice on the First list). It needs to reflect the changing nature of the review task with emphasis placed on periodic review requirements. The Annexes published as a separate volume to the Circular should be updated to incorporate the correct, current statutory references.
It is recommended that guidance on the use of EIA be reflected in the new Circular, as indicated above.

Action for consideration by planning authorities

It is recommended that planning authorities establish a coherent strategy for management for the review process in its entirety.

It is recommended that every planning authority establish a separate minerals register, in addition to the existing public statutory register of all planning application required under section 36 of the Town and Country Planning(Scotland) Act 1997, and Article 10 and Schedule 5 of the Town and Country Planning (General Development Procedure)(Scotland) Order 1992 as amended.
It is recommended that all review matters, including the processing of review submissions should be handled by a single or restricted number of appropriate staff in order to develop or reinforce specialist minerals planning knowledge and skills.
Where planning authorities do not employ staff with appropriate specialist skills in dealing with review matters, outsourcing of such work should be considered.
Action should be instigated as a matter of priority to regularise any active working continuing to operate without the benefit of a valid planning consent.
It is recommended that planning authorities should establish formalised procedures for the screening and scoping of all review cases for the purposes of EIA

Action for consideration by mineral operators

It is recommended that a programme and strategy for the review of the planning circumstances of all sites in a company's ownership is established.
It is recommended that the planning authority should be kept informed of any changes affecting a working site which might require further planning decision or become the subject of attention in any future review
It is recommended that any information requested during the review process be provided timeously, recognising that mineral operators have a role in seeking to reduce delay within the planning decision-making process.

Informal action for consideration by all involved in the review process.

It is recommended that planning authorities and mineral operators establish informal dialogue processes involving, as a minimum, periodic meetings to discuss and review progress in the development of sites. Any statutory requirements for the review of the relevant planning permission(s) can be considered as one output of these arrangements.
It is recommended that consideration be given to the greater use of planning and other forms of agreements as a means of resolving situations which could otherwise deadlock progress towards mutually acceptable outcomes in review cases.

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