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THE REVIEW OF NPPG4 LAND FOR MINERAL WORKING
CHAPTER 11. DEVELOPMENT CONTROL
11.1. Development control covers a wide range of detailed aspects of minerals development, many of which having already been explored in the previous sections. As a result, this section focuses more on the actual procedures of development control, including the use of conditions.
11.2. NPPG4 sets out guidelines for development control in paragraphs 99-102. It defines a number of key factors, which should be taken into account in making development control decisions, evaluating environmental assessments and defining planning conditions. They include:
- methods of working;
- hours of working;
- fit in the landscape;
- transportation;
- potential pollution; and
- restoration, aftercare and after-use.
11.3. NPPG4 goes on to note that where there are sound objections to a proposal, the applicant is required to show how impacts could be mediated, and concern overcome. Planning authorities may also request that environmental information is provided under Article 13 of the General Development Procedure Order, where a formal environmental assessment is not warranted. The guidance also highlights the circumstances where applications may be called in by the Minister for his / her own determination (as they are considered to have implications at the national level).
11.4. The literature on development control and minerals development is wide-ranging and multifaceted. Most of the debate has, however, already been addressed in this report in relation to more specific aspects of the review, and the development control process itself has largely been viewed within its wider context (i.e. together with supporting Local Plan policies). However, some key papers and reports have provided an insight into the effectiveness or otherwise of the minerals planning control process.
11.5. In its advice to local authorities on minerals planning 26, SNH sets out eight steps to be included when assessing a minerals development proposal:
- understanding the development proposal;
- gathering background information;
- field survey/site visit;
- determining the impacts on each of SNH's areas of interest;
- assessing mitigation, restoration and after-use proposals, including opportunities for the creation and enhancement of natural heritage interests;
- assessing any potential cumulative impact;
- assessing the significance of the impacts and making a decision on the overall balance having regard to the impacts and the proposed and potential mitigation and restoration; and
- forming a response to that decision.
1.6. SNH particularly highlights the need to consider the cumulative effects of multiple permissions within a confined area, and argues that there has been increasing pressure on the development control system for developments of this nature, despite a parallel growing awareness of the use of recycled and secondary aggregates.
Example 11.1: Site extensions in Perth and Kinross A recent application to Perth and Kinross Council triggered considerable debate about the definition of a site 'extension'. The operator of an existing site, who proposed the working of additional land beyond a railway line, claimed that the application was for a site extension. However, the local authority argued that as the railway line bisected the deposit, the application was for a new site. The Council has a policy preference for extensions rather than new sites and the application was refused. However, the application was allowed on appeal. The size of the deposit is significant and Perth and Kinross Council remains concerned that there are inadequate safeguards to prevent continual extensions until the deposit is exhausted. |
11.7. Since the publication of NPPG4, several policy documents have raised further issues that relate directly to the way in which the development control of minerals proposals is undertaken. For example, the 1995 Environment Act makes provision for mandatory 15 year reviews of planning conditions for all existing mineral working. The 1997 Town and Country Planning (Scotland) Act, which is a consolidation of the 1972 Act and all subsequent amendments, also notes that compensation may be payable if new conditions, other than restoration and aftercare conditions, restrict working rights. This has subsequently been slightly redefined in the Town and Country (Scotland) (Minerals) Regulations 1998 which state that buildings, plant and machinery should be excluded from compensation associated with changes to conditions in most cases.
11.8. There has also been extensive new guidance on the use of conditions to help ameliorate the impacts of development proposals. In particular, PAN50: Controlling the Environmental Effects of Surface Mineral Workings (1996), and its Annexes provide detailed guidance on the ways in which the development control process can be used to reduce problems of noise, dust, and transport associated with minerals developments.
11.9. Other policy guidance that could have an influence on development control decision-making include:
- NPPG13: Coastal Planning (1997) which notes that more attention should be paid to the potential cumulative impacts of smaller scale sand and gravel extraction in the coastal zone in determining applications;
- Circular 25/1998 which provides guidance on the Review of Old Mineral Permissions and Environmental Assessment;
- A Better Quality of Life (1999) which proposes the use of targets and indicators to monitor permissions for secondary and recycled aggregates and the extent of land covered by restoration and aftercare conditions. Down to Earth: A Scottish Perspective on Sustainable Development (1999) also highlights the need to reuse and reduce construction waste; and
- The Environmental Impact Assessment (Scotland) Regulations (1999) make changes to the EIA terminology and the mandatory requirements for such procedures where the surface area of the site exceeds a certain size. The Regulations provide further guidance in relation to development control procedures.
11.10. More specific guidance is also provided in PAN40: Development Control (revised) (2001) which lists the fundamental objectives in making planning decisions, and notes the need for accordance with the development plan unless material considerations indicate otherwise. Paragraph 39 states that the availability of advice from specialists is an essential resource for development control officers and can cover topics such as archaeology, conservation, ecology, noise and landscape design.
EXTENT OF DEVELOPEMENT CONTROL EXPERIENCE
11.11. Most of the questionnaire respondents have had at least one application for minerals development, with the exception of the more urban authorities. Many of the authorities have also had applications for minerals production outside of identified areas for mineral extraction, and most of these applications had also been approved. Table 11.1 summarises the extent of experience post publication of NPPG4.
Table 11.1: Number of applications received by each responding local authority since 1994
Local Authority | Number of Applications 1 |
Sand and gravel | Hard rock | Other |
Aberdeen | 1 | 2 | 0 |
Aberdeenshire | 24 | 17 | 0 |
Angus | 4 | 4 | 0 |
Argyll and Bute | 12 | 12 | 4 peat |
Clackmannanshire | 0 | 1 | - |
Dumfries and Galloway | 19 | 9 | 12 (not specified) |
Dundee | 0 | 0 | 0 |
East Ayrshire | 1 | 1 | 9 opencast |
East Dunbartonshire | 2 | 0 | 1 removal of colliery waste |
East Renfrewshire | 0 | 1 | 0 |
Falkirk | 3 | 3 | 1 deep coal
2 opencast
2 peat
4 coal bed methane |
Fife | 9 | 7 working + 3 dormant | 7 opencast
2 silica sandstone
1 building sandstone
1 deep coal |
Highland | 30 | 27 | 8 Caithness flagstone and flagwaste
2 peat
1 silica sand
1 dimension sandstone
1 adularia potash
1 dimension marble |
Orkney Islands | 5 | 2 | 1 peat |
Perth and Kinross | - | - | - |
Renfrewshire | 0 | 2 | 0 |
South Lanarkshire | 11 | 2 | 5 opencast
2 brick clay
4 peat |
Stirling | 4 | 1 | - |
Western Isles | 12 | 10 | 0 |
West Lothian | 2 | 0 | 1 silica sandstone |
1 Some of these will relate to new sites or extensions, others will address changes in conditions etc.
ADEQUACY NPPG4 AS A FRAMEWORK FOR DETERMINING PLANNING APPLICATIONS
11.12. Industry representatives expressed concern over the lack of consistency of development plan policies with NPPG4, and consequently their role in shaping development control decisions. In general, operators feel that there is an over-emphasis on environmental and social aspects of sustainability, as opposed to the economic strand of the concept. More specific issues were raised in relation to the use of bonds and agreements, and the need for more guidance on the subject.
11.13. NGO representatives had similar concerns about the consistency of plan policies, and therefore development control decisions, with the principles set out in NPPG4. However, their concerns relate more to the need for better application of environmental protection than the economic priorities noted by Industry. They also raised concerns about the need for planning authorities to have staff with more expertise involved in decision-making processes. They also felt that stronger guidance on restoration, aftercare and environmental enhancement would help to ensure that practice is improved on the ground through the development control process.
Example 11.2: Developement control, Fife In Fife, the need to develop a better understanding of the complexities of minerals planning was highlighted by a recent application. In an appeal by the Fife Sand and Gravel Co. Ltd., the difficulty of balancing the need for tight controls in mineral cases with the scope and limitations of the statutory planning system were highlighted. The appeal, relating to Collessie Quarry, was against two conditions, the first requiring that the operator entered into a planning agreement with the Council to secure restoration proposals. This was revised by the Reporter as it was contrary to wider policy which notes that agreements should be entered into voluntarily and not in exchange for a consent. A second required a 20 metre landscaped buffer zone to be maintained between the site and adjacent properties. The Council argued that this was in accordance with the development plan, which makes provisions for reasonable steps to be taken to minimise disturbance caused by extraction on adjacent properties. However, the Reporter noted that the legality of the wording of the condition was questionable in that it provided scope for the planning authority to impose additional noise restrictions in the future. He also concluded that the buffer zone itself could have a negative impact on the landscape and restoration plans, and was therefore not justifiable. The arguments presented in the case related as much to the wording of the conditions as they did to their provisions. The authority consequently suggests that more guidance on ways of retaining reasonable regulative powers in relation to minerals proposals within the confines of the existing statutory planning system might be beneficial. |
11.14. Aside from locational and operational considerations discussed in previous sections, only a few local authorities raised concerns about the guidance relating specifically to development control. Overall, there was broad agreement amongst the respondents that NPPG4 is working well in relation to development control, particularly given the accompanying advice provided in PAN50.
11.15. However, one authority suggested that more guidance on the process of appraising applications, as provided in NPPG16, would be beneficial. Another authority also felt that more guidance could be provided in relation to enforcement and ways of dealing with unauthorised operations.
11.16. The responses to the survey of Scottish Executive Inquiry Reporters provided a further insight into development control experiences. Most of the Reporters felt that NPPG4 provides a sufficiently clear statement of policy, with relatively few concerns about inconsistencies being raised. Some felt that some parts of the guidance could be made more explicit, with the implication being that this would help to guide local decision-making. In particular, additional information about assessing relatively complex issues such as impacts on communities (and linked with this, health), tourism and recreation would be welcomed. One respondent also felt that there is a need for more guidance on the use of conditions, particularly where they relate to requirements for after-use and restoration of sites. Most of the respondents also felt that the more specific approach defined in NPPG16 would be helpful if NPPG4 was to be reviewed.
APPEAL DECISIONS
11.17. Reflecting the responses from the Reporters questionnaire, only a few minerals appeals tend to take place in Scotland each year. Several local authorities and a number of industry representatives noted that NPPG4 is often contested during the appeal process. As one local authority respondent stated: "Experience tends to be that the appellant uses extracts from the NPPG for his case, the Council uses the same or other extracts of the NPPG for its case, and then the Reporter must make his / her own mind up on the interpretation to be given to the relevant parts of the NPPG."
Example 11.3: The use of NPPG4 in appeal cases, Highland Council In January 1994, an application was lodged with Highland Council for the extraction of approximately 1.7 million tonnes of sand and gravel, over a 12 year period, to supply a local (Inverness based) market. The site was not within an area specifically allocated for mineral extraction in the extant development plan, but was classified as 'white land', where applications are treated on their own merits against the general policies of the Council. The application was refused in July 1994 on the grounds of potential environmental effects, including the site's location within a SSSI. It was also argued that extraction could prejudice the long-term expansion of Inverness. The applicant lodged an appeal (Ref No: P/PPA/HC/225) in December 1994, stating that (the recently published) "NPPG4 requires local authorities to provide positively for minerals by identifying preferred areas for extraction…it is evident from this Guideline that there is a presumption in favour of mineral extraction unless there is a strong environmental or amenity case against the development". Reference was also made to the sections of the guidance in relation to supply and demand, distance to markets, development in designated areas and restoration. With the agreement of Highland Council, Minerals Planning Guidance Note 11: The Control of Noise at Surface Mineral Workings was also referred to (this was prior to the publication of PAN50 Annex A). At the Inquiry held in September 1995, Highland Council noted that "NPPG4 is interspersed with references relating to the protection of environmental interests". The guidance was also quoted extensively by the Association for the Protection of Rural Scotland, including the importance of sustainability (paras. 3 and 4) the definition of market areas (para 50), the protection of SSSIs (paras. 18 and 19) and the justification of special circumstances (paras. 20 and 21). In May 1997, the appeal was allowed. The Decision Letter acknowledged the guidance given in NPPG4 para. 19, whereby mineral extraction should only be permitted where it can be demonstrated that the underlying objectives and overall integrity of designated areas will remain largely unaffected. As SNH had confirmed that the appeal site was the least sensitive part of the SSSI, it was stated that "approving this development would accord with the balanced approach to mineral development advocated by NPPG4". |
DEVELOPEMENT CONTROL AND THE PRODUCTION OF RECYCLED AND SECONDARY AGGREGATES
11.18. A number of local authorities have had applications for this type of development:
- in East Ayrshire, one application has been received for a full, permanent recycling facility at Mauchline Colliery. Councillors refused permission, contrary to the Committee recommendation. The case has not gone to appeal;
- in Dumfries and Galloway, an application for the reworking of coal waste was approved subject to the applicant entering into an agreement. This was never finalised and as a result the development did not proceed. Nevertheless, the Authority is of the view that NPPG4 provides sufficient guidance in relation to this issue;
- Renfrewshire Council has received one application at Kilbarchan Quarry for recycling building materials associated with road coating materials. The Council also felt that NPPG4 contains sufficient guidance on recycled and secondary aggregates production;
- East Dunbartonshire Council has had an application for permission for a stone sorting yard to process demolition rubble. Consent was granted subject to a Section 75 agreement which has not yet been signed, consequently the development has also not yet commenced. However, the authority was also of the view that sufficient guidance is provided in NPPG4 on this issue; and
- Highland Council has received seven applications for recycled / secondary aggregates production since 1994. All were approved except for one, which has yet to be determined. The Authority would welcome further guidance on this issue.
Example 11.4: Determining applications for recycled and secondary aggregates operations In approving a recent application for a construction and demolition plant at a landfill reclamation site, Highland Council drew largely upon the guidance contained in NPPG10: Planning and Waste Management (1996). The Committee Report makes reference to the importance of the priorities for waste management reflected in the 'waste hierarchy' and quotes para. 55 of NPPG10 which states that "the use of demolition materials is widespread in civil engineering and building construction where specifications permit. Continued provision of facilities that allow for sorting and transfer of materials will spare the needless landfilling of such waste". A controversial case relating to this issue emerged in East Ayrshire. An application was lodged in 1998 to develop a waste transfer station, builders yard and offices. The applicants were a construction firm that also ran a waste recycling business. The company wished to extend this business by developing the site at Mauchline Colliery. The application proposed that the site would be used for the recycling of mostly building and demolition waste although it would also provide scope for the processing of contracted excavation material, general commercial and industrial waste, and garden and landscape wastes. In the long term, the applicant intended to reduce the bing on the colliery site, thus reducing the visual impact of the old coal workings. The proposal was recommended for approval subject to conditions which conformed closely with NPPG4. However, consent was not granted by the planning committee of East Ayrshire Council. Councillors expressed concerns about the impacts of the development on the amenity of the local area, particularly in relation to adjacent dwellings. It was also considered that traffic to and from the site would exacerbate existing local concerns about noise and dust. |
11.19. Involvement with this type of operation is growing. The experiences of several local authorities may be indicative of a lack of expertise in this area, with two schemes approved, but not commenced, as planning agreements and conditions have not been finalised. This could reflect an underlying need for more specific guidance in relation to this issue.
KEY ISSUES
- the use of planning conditions is critical. This was particularly highlighted in relation to the operational phase of extraction, aftercare, restoration and after-use of sites and the production of recycled and secondary aggregates.
- concerns have been raised over the level of technical expertise of development control officers involved in minerals decision-making.
- the linkages between development plan policies and development control decision-making are also interesting. In light of the primacy of the development plan, there is a need to explore how potentially controversial policies, or a lack of explicit policy guidance, have led to contentious development control decision-making on the ground.
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