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REVIEW OF OLD MINERAL PERMISSIONS

CHAPTER FOUR ISSUES AND BEST PRACTICE

4.1 This Chapter identifies and discusses key issues and problem areas found to exist within the review process. It also identifies examples of how particular authorities have sought to resolve such issues or potential problems in such a fashion that represents best practice.

4.2 The key issues arising from experience of the review process in practice fall within 2 broad areas, namely:

• Issues associated with the contextual framework - statutory or otherwise - established for the review process
• Issues arising from how planning authorities have conducted the review process

In reality, many issues relate to working practices that involve elements of both statutory provisions, and procedures or approaches adopted by individual planning authorities.

STATUTORY FRAMEWORK

4.3 The basic statutory provisions for the review are now based on section 74 and Schedules 8, 9 and 10 of the Town and Country Planning (Scotland) Act 1997. The schedules cover IDO consents (Schedule 8), initial reviews (Schedule 9) and periodic reviews (Schedule 10) respectively, and establish the detailed requirements, responsibilities and procedural arrangements. While this framework appears comprehensive and inevitably relatively complex, it should not present any more difficulties in interpretation and use than many other parts of the same Act. It must however be recognised that for at least a few authorities this has not been the case. In addition, it must be acknowledged that, unlike many other parts of the Act, the review provisions remain "untested" in the Scottish courts.

4.4 The fact that to date no legal challenge to any of the review requirements, or to any particular case, has been made through the courts is quite surprising given an increasing tendency to challenge to planning decisions generally, and the somewhat draconian nature of some of the review provisions. For example, it has been suggested that the loss of a valid planning permission as a consequence of a planning authority's error or other failure to include a site on the first list appears contrary to the fundamental legal principle of natural justice.

4.5 Although relatively few criticisms of the legislative framework were raised in the course of the study by either planning authorities or the minerals industry, it is apparent that the statutory provisions underpin a number of the issues examined below. A common source of a number of problems appears to be some confusion on the status of an application for the approval of a new scheme of conditions. Some doubts focus on whether such a submission constitutes a "planning application". It is evident from Circular 34/ 1996 that applications for the determination of new conditions require to be treated as if they were an application for planning permission for the winning and working of minerals, but this intention does not appear to be fully reflected within the legislation. The treatment of a submission as a planning application appears to be reinforced by the court ruling referred to at paragraph 1.19 above, which clearly establishes that it represents a "development consent". It is also clear that most planning authorities deal with review submissions administratively and procedurally in exactly the same (or a very similar) manner as any other planning application.

4.6 However, in such circumstances the provisions of the Town and Country Planning (General Development Procedure)(Scotland) Order 1992 appear to be applicable, except for those matters for which explicit alternative arrangements are made in the principal Act, i.e. the 1997 Planning Act. Thus, for example, the variation in the time period for determination (from the usual 2 months to 3 months for review cases) and deemed approvals (as opposed to the usual deemed refusals) fall into this category of provision. However there appears to be some conflict within the legislative provisions in relation to registration of the application/ submission, and in cases where EIA is required. In addition, there appear to be situations arising in practice which have not been anticipated within the legislation. These aspects are further examined below.

4.7 It does not fall within the terms of this study to seek to resolve these matters, but rather they are highlighted and reflected in the recommendations to the Scottish Executive, as aspects requiring attention based on legal opinion.

Guidance and advice

4.8 Guidance on the statutory provisions and procedures for the review is given in Scottish Office Development Department Circulars 34/ 1996 and 25/ 1998. In addition to this specific advice, there are several other sources of guidance relevant to the review process and associated subject matters. These include Circular 4/ 1998 (use of conditions), Circular 26/ 1992 (operating, restoration and aftercare conditions for IDO permissions), National Planning Policy Guideline (NPPG) 4 (land for mineral working), NPPG 16 (opencast coal and related minerals) and Planning Advice Note (PAN) 50 and associated Annexes (controlling the environmental effects of mineral working).

4.9 The study established that the principal Circulars (i.e. 34/1996 and 25/ 1998) have not been well received by any of the parties within the review process. The guidance offered has been widely criticised and was frequently regarded as "unhelpful". More specific comments suggested that many parts of the guidance appeared "vague and contradictory".

4.10 Review of these Circulars would suggest that the criticisms are not without foundation. Circular 34/ 1996 is unusually lengthy in outlining the statutory requirements for the review in very considerable detail. In doing so, there is a considerable element of repetition within the document, for example, in setting out requirements for Phase 1, Phase 2 and periodic reviews. As such, the document is likely to be used for reference purposes only to check specific points, rather than the form of publication likely to be read in its entirety. This view on the general form of the guidance was reinforced during the study where on a number of occasions it was evident that some planning officials were unaware of particular pieces of advice contained within the Circular. While it would superficially appear that the guidance given is highly comprehensive, in reality it is primarily a description of the legislative provisions with, in many parts, little added in terms of understanding or meaningful advice. This reinforces a view expressed during the study that the guidance carefully avoids those aspects where advice is actually needed.

4.11 Perhaps the most obvious deficiency in the advice is simply that all statutory references are incorrect insofar as they relate to the Environment Act 1995 which has been superseded by the provisions of the Town and Country Planning (Scotland) Act 1997. This is particularly unfortunate as Circular 34/ 1996 has a separately bound volume of Annexes, which sets out suggested forms of most statutory notices and certificates for use in the review process. By their inherent nature such notices contain extensive references to the statute. Recognising that many planning authorities indicated a lack of appropriate expertise as a problem in undertaking review work, it appears very likely that greater reliance will have been placed on the guidance than might otherwise be expected. The potential problem of outdated guidance in this regard is self-evident, and requires action as a matter of some urgency.

4.12 Accusations that the guidance is unhelpful, or at least less positive than it might be in terms of the advice offered, would appear to be well-founded. This is perhaps best illustrated by reference to an example - advice on consultations. The advice offered in Circular 34/ 1996, paragraph 88 is as follows:

"Similarly, whilst the provisions of the Town and Country Planning (General Development Procedure)(Scotland) Order 1992 as amended………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 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 the consultees. Unnecessary duplication of consultation should be avoided"

4.13 While it may be argued that this advice provides a helpful discretion to planning authorities, in reality it simply creates uncertainty within the decision-making process. It provides a potential opportunity for any planning authority to exclude any body whose views may differ from their own. This is highly relevant to review cases where for example Scottish Natural Heritage (SNH) may have a potential interest, which in many cases is less accommodating to the continued working of sites. To simply ignore such views would be totally unacceptable in the open, publicly accountable political arena within which the planning system operates. Such situations have not occurred, as planning authorities have exercised their discretion in favour of undertaking consultations on a similar basis to that required in relation to conventional planning applications.

4.14 However, in all cases it must be recognised that even where pre-application consultations between the applicant and another agency have occurred, it would be regarded as good practice for the planning authority to subsequently confirm that what has been submitted accurately reflects what was previously agreed. As such, it is evident that while the advice on this aspect was given in the interests of improving efficiency within the decision-making process, in reality it is contrary to what is normally required for technical reasons and sound administrative practice. This example is not an isolated case within the Circular, but illustrates why the Circular is regarded as unhelpful.

4.15 It is suggested that there is a strong case for the preparation of a replacement Circular as a matter of some priority. This is primarily justified in terms of the changing nature of the review task over time with an increasing emphasis on periodic review. However, clearly it also provides an opportunity to revisit the existing guidance recognising the significant number of Phase 1 and 2 cases still outstanding.

Schemes of conditions

4.16 The statutory arrangements for the review of individual sites place an onus on the mineral operators to instigate action through the submission of a new scheme of conditions for the approval of the planning authority. This arrangement is based on an inherent assumption that all mineral operators have the professional skills and ability to draft a set of planning conditions, which, inter alia, meet the 6 well-established criteria for the use of such conditions (SODD Circular 4/1998, paragraph 2 refers). The study has revealed that this assumption is fundamentally flawed, with few cases found where the operators proposed conditions were approved without amendment by the planning authority. There is ample evidence that the need for planning authorities to often redraft and/ or renegotiate conditions with applicants represents a significant and common source of delay. As a consequence of the potential compensation liability in circumstances where new or extended conditions could affect working rights, planning authorities have tended to adopt a relatively cautious approach in making changes to the submitted scheme. Inevitably this has required working closely with the applicant in order to fully evaluate and secure agreement to any such changes.

4.17 In identifying this issue, a number of planning authorities drew a distinction between smaller local operators with minimal knowledge or experience of the planning system and regional or national companies typically employing consultants or with in-house specialist staff. Lack of planning expertise is a particular problem for many local companies. This is perhaps best illustrated by reference to an actual (if extreme) example. In relation to a beach sand working, the proposed "scheme" of modern conditions was confined to a single condition, referring to the depth of extraction, and reading:

"Down to 50 m below sea level as required"

The applicant was apparently surprised that this proved unacceptable to the planning authority!

4.18 Although advice to applicants in preparing submissions was given in Annex L to SODD Circular 34/1996, there is little evidence to suggest widespread familiarity with the content of this document. It must be recognised that schemes of conditions must be tailored to the circumstances of individual sites, and hence the adoption of standard "model" conditions is inappropriate. However, there appears to be a need to revisit the form of advice given. In doing so, particular emphasis should be given to how it can be more effectively communicated to applicants.

4.19 It may be prudent to further clarify minimum requirements for the submission of schemes of conditions. The study found that there were wide variations in the form of application submissions, which would appear to have contributed to delay through the need to obtain further information from applicants. What constitutes an application is defined in Schedule 9, paragraph 9(2) of the 1997 Planning Act as to be in writing, and shall:

(a) identify the site,

(b) specify the land or minerals of which the applicant is the owner or has an interest,

(c) identify any relevant planning permissions relating to the site,

(d) identify and give an address for any person known or believed to be an owner of land or with an interest in the relevant minerals in the site,

(e) set out the applicant's proposed conditions

(f) be accompanied by an appropriate certificate (i.e. the usual certificates required for a minerals planning application, including neighbour notification)

4.20 While any such application may be legally correct it is evident that, if confined to the matters above, it will be far from complete from the viewpoint of the typical information required for determination. This is recognised in the statutory provisions, which under paragraph 9(9) allows the planning authority to specify further details required for the purposes of determination. While pre-application discussions should identify most information requirements, in practice, further details are often needed. As noted above, this inevitably contributes to delay within the decision-making process.

4.21 To assist in the application process, at least one planning authority has produced a set of application forms specifically for use in the submission of new schemes of conditions. This was suggested in the guidance issued to planning authorities in Circular 34/1996. It must however be acknowledged that the resources required to produce such forms would generally not be justified given the relatively small number of review cases for a significant number of planning authorities.

Use of Environmental Impact Assessment (EIA)

4.22 Although advice was issued in November 1998 commending the use of EIA in all cases on a voluntary basis, it was not until November 2001 before further action was taken to promote legislative change requiring EIA screening in all review cases. Although the impetus for change is found in English court rulings, the case for change was strengthened in 1999, when new amendment Regulations were introduced in response to EU Directive 97/11/EC. These new Regulations introduced significant changes in relation to minerals development, having the effect of requiring the mandatory use of EIA for all but the most minor forms of such development.

4.23 This study has established that major variations exist between planning authorities in their use of EIA in review cases. Such variations in practice span the full spectrum of options ranging from use of EIA in every case to no use whatsoever, while some authorities adopt the use of EIA on a selective basis depending on the particular case circumstances. It is suggested that this variation in the use of EIAs is undesirable as it creates considerable uncertainty for mineral operators, and gives rise to circumstances in which the prospect for legal challenge through the courts is significantly increased.

4.24 It is important to recognise that in those cases where the use of EIA has not been adopted this does not necessarily result in poorly informed decisions. Some authorities would suggest that the supporting information accompanying the submission is often more focussed and informative than is typically found within a formal EIA Environmental Statement. It may be argued that recognising the on-going nature of active mineral workings, the decision-making process would be better informed by an environmental audit of the existing working, accompanied by a more restricted assessment of the potential environmental impacts and mitigation measures for the remaining unworked areas of the site. However, recognising the Court rulings on the use of EIA, it will be a matter for planning authorities to ensure through scoping that the form of assessment is appropriate for each particular review site.

4.25 It is evident that a particular aspect of concern in the use of EIA in review cases has been the comprehensive nature of assessments required under the terms of the Environmental Impact Assessment (Scotland) Regulations 1999 in order to comply in full with the requirements of the EU Directives. As noted above, the appropriateness of this form of comprehensive assessment could be considered questionable in many review cases, particularly as the potential scope for change on aspects of many sites can be restricted by compensation liability. As the Scottish Executive is already committed to legislative change in relation to review cases, there is some merit in suggesting that consideration is required to the issue of further guidance on the scope of EIA when undertaken for review purposes.

4.26 There is evidence to suggest that the use of EIA has contributed to major delays within the decision-making process for some review cases. An issue which has emerged in a number of cases is where an Environmental Statement has been requested subsequent to an initial review application but without an agreed timetable for submission as recommended in SODD Circular 25/1998. Such cases have been the subject of indefinite delay, and account for a number of the currently unresolved Phase 1 cases. This clearly illustrates the importance of careful management of individual review cases.

4.27 Finally, in relation to the use of EIA, reconciliation of the respective statutory periods for determination of applications will be achieved through the current proposals for legislative change. At present, applications for the approval of new schemes of conditions are subject to a 3 month statutory period, but the equivalent period for any application treated under the terms of the Town and Country Planning (Environmental Impact Assessment)(Scotland) Regulations 1999 is 4 months.

Timescale for determination/ Registration of applications

4.28 The statutory period and arrangements for determination of review applications are unusual insofar as planning authorities have a 3 month period from receipt of all necessary information to take a decision, and unless an extension of time is agreed, the application is deemed to be approved if no decision has been taken. In all other respects, review applications are subject to the same procedural arrangements as any other planning application. In this regard, the statutory period for determination commences on the date the application is registered. While these arrangements may superficially appear quite simple, the study findings would suggest otherwise.

4.29 The most significant problem encountered centres on the basic assumption that a planning authority should be satisfied that all necessary information for decision-making purposes is available prior to registering the application. In reality, and bearing in mind the complexity of many review cases, it can be exceptionally difficult to establish whether all necessary information is available prior to commencing processing and assessment of the application. This position is potentially exacerbated by virtue of the nature of review cases, which are typically distinguished by the degree of negotiation required to produce a mutually acceptable decision. As such negotiations are progressed it is virtually inevitable that requirements for additional information will arise. Equally, and in common with most other planning applications, the need for additional information is often generated not by the planning authority, in the first instance, but arising from issues raised by statutory consultees.

4.30 The problem in these circumstances is that there appears to be no procedural mechanism through which the statutory period for determination can be stopped or reset to facilitate the process of obtaining further information once the application is registered. Although SODD Circular 34/1996 suggests that the 3 month period simply commences after all information has been received, this appears at odds with the usual implications of formal registration. This aspect requires clarification as there is considerable evidence to suggest that it represents a common issue arising for most planning authorities. Perhaps the significance of this matter rests in the fact that it potentially constitutes a basis for the successful legal challenge to the review decisions in the courts.

4.31 Although these circumstances are common to all planning applications, review cases are potentially problematic by virtue of the deemed approval feature of failing to take a decision within 3 months. This has placed very considerable pressure on the planning authorities to seek agreed extensions of time with applicants. Recognising that the prime beneficiary of a mineral operator refusing to agree such an extension is the mineral operator (i.e. resulting in the automatic approval of the operators proposed conditions) it is indicative of attitudes within the industry that no examples were found of a company seeking to take advantage of this position. However, it is evident that some planning authorities have failed to recognise the importance of formally agreeing extensions. This is best illustrated by two examples found during the study of local authority "decisions" which are in fact ultra vires for this reason. Two further examples were found where the original proposed conditions were approved by default on the part of the planning authorities.

4.32 Finally, it was noted in the study that a limited number of authorities had established a separate register (supplementary to the statutory register) for either all minerals development applications or for review cases only. This was seen as prudent in order that such applications were not "lost" within the general register. The advantage of doing so was amply illustrated by a number of authorities who appeared to have experienced difficulties in tracking review applications from their general register for the purpose of assisting in this study! In the light of the periodic review requirements in the future, there is an obvious need for authorities to establish appropriate systems.

Lapsed Consents and Enforcement

4.33 As noted at 3.11 above, the number of consents, which have lapsed due to non-submission of new conditions, is surprisingly high. Of particular concern, is the fact that for at least 3 such sites, working has simply continued without the benefit of planning permission. While the means of resolving this position lies in the instigation of enforcement action, it is evident that for various reasons there is extreme reluctance on the part of the planning authorities to pursue this option. Indeed in relation to one of these cases, due to unusual circumstances, enforcement by the planning authority is not legally possible.

4.34 The study found a number of cases where the planning authorities had refused to accept applications for the approval of new conditions on the basis that unauthorised development had occurred on the site. The relevant authorities had accepted that enforcement action was not feasible due to the very lengthy periods of time that had elapsed since the breach had occurred. They were only prepared to consider new applications covering the entire sites. In all 3 cases the applicants had refused to submit any such applications, but since they are immune from enforcement action, the authorities were powerless to take further action and the cases remain unresolved. It should be noted that in these cases the relevant permissions remain valid as the applicants met their statutory requirements to submit a new scheme of conditions by the specified dates.

4.35 These are examples of situations that were not anticipated within the legislation, and now require further consideration.

Public Perception

4.36 A common feature of the review process is the fact that for most members of the public and elected councillors there is a lack of appreciation and understanding in relation to individual cases. In particular, there is a common perception that an application for the approval of a new scheme of conditions provides an opportunity to re-evaluate matters of principle relating to the working, including the prospect of closing an existing working through a refusal of planning permission. More than one authority suggested that this problem also extends to some statutory consultees. This is of particular concern recognising that the need for additional information during the processing of the application is often generated by the statutory consultees, and is identified in this study as a significant source of delay in decision-making.

4.37 It is indicative of the extent of the problem that at least two planning authorities have gone to considerable lengths to ensure that review submissions are never described or seen as "planning applications".

Planning Authority Staff Resources and Expertise

4.38 A significant number of planning authorities cited staff workload pressures and/ or a lack of staff with appropriate minerals expertise as a key factor explaining delay in decision-making or difficulties faced in undertaking the review process. The apparent lack of minerals expertise within a significant number of Scottish planning authorities is a long-standing and widespread matter of concern within the minerals industry. While it is generally accepted that the development control staff in particular of some councils are under some pressure to meet established performance indicator targets, the fact remains that this is a management issue for each authority. It is not the role of this study to evaluate the relative performance of the planning authorities in meeting the statutory requirements for review. However, it must be acknowledged that it is generally those authorities with the greatest number of review cases, or the higher development control workloads, which appear to have made greater progress in completing the review work. As such, it may reasonably be concluded that the issue is rather more one of relative priority given to the review work than a simple lack of appropriate staff resources.

4.39 It is also evident that the apparent lack of appropriately trained or experienced minerals planning staff is a consequence of management decisions in this regard, presumably based on perceived planning priorities within the authority. This aspect tends to reinforce the view that minerals planning matters continue to be given a low priority within many authorities, and is a matter of general concern within the minerals industry. The fact of the matter is that planning authorities have a statutory responsibility for the regulation of minerals development and in meeting that responsibility there is an onus on authorities to employ or otherwise engage appropriately qualified staff. Although beyond the scope of this study, it is somewhat surprising to find that in spite of increased concerns in recent years for protection of the natural environment and the importance of minerals extraction to local, regional and national economies this has not been reflected in the priorities of many Scottish planning authorities. It would appear that as the relative status of the entire planning function has been diminished within some local authorities, this has further reduced the priority given to mineral planning matters.

4.40 Although it would appear that some authorities have experienced some difficulties in meeting their statutory requirements for the review only one such authority has taken a positive initiative to address this issue. In this case, faced with restricted staff resources part of the workload was outsourced by the temporary re-employment of a recently retired member of staff on a consultancy basis. In the light of the increasing trend, particularly in England, to outsource planning work in circumstances where the local authorities do not have the in-house resources to provide an efficient and effective service to the public, it is suggested that consideration must now be given to adoption of a similar approach, where necessary.

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