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REVIEW OF OLD MINERAL PERMISSIONS
CHAPTER FIVE SUMMARY CONCLUSIONS AND RECOMMENDATIONS
5.1 This chapter presents a summary of the principal conclusions of the study and recommendations for consideration by the Scottish Executive.
Effectiveness of the Review Process
5.2 The overall conclusion of the study is that 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 modern expectations for protection of the environment consistent with best working practices. However, it is evident that progress in this regard has moved somewhat slower than anticipated, and much remains to be done before the potential problems associated with old mineral permissions can be considered to be eliminated throughout Scotland.
5.3 The current statutory provisions sought to address perceived problems inherent in the initial arrangements for the review of old minerals permissions established in the Minerals Act of 1981. It is evident that within the minerals industry many of the earlier concerns regarding the potential effects of the review process on existing operations have been removed. In part, this appears to be due to changed attitudes within the industry towards the need for environmental protection generally. However, it is also a reflection of changes introduced in the current statutory provisions and associated advice which explicitly seek to secure environmental improvement without prejudice to the asset value or continued economic viability of working sites. The study confirmed that this intention was reflected in practice, with no cases found where a planning authority had applied conditions that restrict working rights to a degree considered likely to prejudice the economic viability or asset value of a site.
5.4 It was widely acknowledged that the fundamental weakness in the earlier legislative provision was the failure to establish any time limits or dates for either commencement or completion of the review process. This aspect has been successfully addressed in the current arrangements insofar as all planning authorities instigated the review process through the publication of the first list within the timescale established within the statute. It is evident however that for many authorities delays commenced at the time of the first submissions by mineral operators.
5.5 The reasons for these initial delays in the decision-making process appear to vary considerably depending on individual case circumstances. However, it is not without significance that in many cases, where delays occurred, there appears to have been little or no dialogue between planning authorities and mineral operators/ applicants in the intervening period between publication of the list and deadline for receipt of the submission of new schemes of conditions. The study established that in many such cases contact was confined to the service of statutory notices. Bearing in mind that the required form of submission was in effect new and unfamiliar for all parties, it is not entirely surprising that a considerable number of the initial applications were found to be inadequate. This view is supported by evidence that in cases where extensive pre-application discussions had occurred, there was often a comparatively straightforward progression towards a decision.
5.6 It is evident that the following range of factors have influenced progress in the review process:
- Complexity of individual cases
- Availability of appropriate staff resources within planning authorities- workload and expertise issues
- Quality of submissions and information from mineral operators
- Availability and quality of past planning records
- Quality of guidance given by the (former) Scottish Office
- Potential compensation liability issues
- Public perception of applications for approval of new schemes of conditions
- Relative planning priorities within authorities
There are very significant variations between planning authorities in terms of the extent to which these factors, or combinations of these factors, have influenced performance or ability to complete the initial review requirements.
5.7 It is evident that initial delays within the decision-making process have continued into the review of Phase 2 sites. As the number of review cases subject to EIA is likely to increase in the future, a corresponding increase in delays can be anticipated, assuming that no other change in current practice occurs. While the increased use of EIA in review cases may potentially improve the quality of decision-making, there is a clear onus on planning authorities to ensure that the credibility of the process is not undermined by excessive delays.
5.8 In spite of the delays within the review process, it is evident that significant environmental benefits have been achieved in relation to a number of sites where the review has been completed. The evidence of this study would suggest that the primary benefits most commonly arising from the review relate to land restoration and site after-use. This represents an area in which there have been considerable changes in approach in recent years. While in the past, restoration of land for agricultural use was the norm, changes in agriculture and associated government policies have placed less value and need for this form of after-use. The review process has provided an opportunity to establish or revisit proposals to create land restoration schemes and uses more appropriate to current demands on the countryside. Such demands include the provision of recreational uses, and habitat creation or enhancement for nature conservation purposes.
5.9 In addition to restoration related benefits, improvements to vehicular access arrangements have been secured in a significant number of cases. In many respects, this was to be anticipated particularly for the older sites which were originally granted planning permission with access arrangements that often failed to meet modern requirements and standards. Any upgrading work undertaken in more recent years was typically instigated by the mineral operator. Although improvements were sought through the review process, such physical alterations have proved problematic to achieve in many cases, often requiring the involvement of third party landowners.
5.10 However, the extent to which environmental benefits are solely attributable to a new set of planning conditions is highly questionable. The effectiveness of the review process would appear to centre on the fact that it provides a focus and forum for reappraisal of the working arrangements and circumstances on a site. It requires mineral operators to give in-depth consideration to future operations in a manner which might not otherwise occur. As such, the effectiveness of the process possibly owes rather more to the opportunities it presents for dialogue between the parties than to the specific statutory provisions. As an industry whose future is increasingly dependant on its ability to demonstrate that minerals extraction can occur without significant, irreversible, detrimental effects on the environment, the review process provides such an opportunity.
RECOMMENDATIONS
5.11 Based on the findings of this study, the following recommendations are made:
A. 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) It is recommended that the Town and Country Planning (Environmental Impact Assessment)(Scotland) Regulations 1999 be amended without further delay 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.
B. Revised guidance for consideration by the Scottish Executive
(a) 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.
(b) It is recommended that guidance on the use of EIA be reflected in the new Circular, as indicated above.
C. Action for consideration by planning authorities
(a) It is recommended that planning authorities establish a coherent strategy for management for the review process in its entirety.
(b) 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.
(c) 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.
(d) Where planning authorities do not employ staff with appropriate specialist skills in dealing with review matters, outsourcing of such work should be considered.
(e) 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.
(f) It is recommended that planning authorities should establish formalised procedures for the screening and scoping of all review cases for the purposes of EIA
D. Action for consideration by mineral operators
(a) 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.
(b) 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
(c) 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.
E. Informal action for consideration by all involved in the review process.
(a) 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.
(b) 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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