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REVIEW OF OLD MINERAL PERMISSIONS - ANALYSIS OF RESPONSES TO CONSULTATION

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Local Authorities, Planning

Welcomed proposals and offered comments

Aberdeenshire Council, Planning and Environmental Services

• support the removal of deemed approval provisions and the changes in timescales;
• suggests 'the development being suspended' is not clear and should be clarified;
• considers the introduction of 'right of appeal' acceptable;
• suggests the Development Industry should pay for all applications that require ROMP advertisements;
• agrees that EIA provisions should apply to Council sites; and
• suggest the RIA is a matter for the Scottish Executive as opposed to Planning Authorities.

Angus Council, Planning Transport

• agrees with all 6 proposals; and

• suggest an EIA in respect of a ROMPs proposal would be at the lower end of the scale and suggests 35,000 may not be a reasonable estimate.

Comhairle Nan Eilean Siar, Development Control

• para. 14. suggests that deemed consent provisions may be used, while Proposal 1 suggests that they should be removed all together, clarification required;
• asks whether it is open to a planning authority to simply accept that EIA is needed without having to adopt a screening option;
• asks if account will be taken of small/micro businesses that are dependent on the continued operation of an existing quarry; and
• supports the proposed review of the RIA within 10 years.

Falkirk Council, Planning and Transport

• suggest the Regulatory Impact Assessment does not take into account the additional cost to planning authorities of reviewing old mineral permission and assessing EIAs.

Fife Council, Planning & Building Control Service

• welcomes the proposal to formally bring ROMP under EIA;

• supports the removal of "deemed approval" and the introduction of "rights of appeal" to make planning legislation consistent with EC Directives;
• suggests SE should provide guidance on how a planning authority will effectively secure suspension of operations;
• suggests the increase in time from 3 to 6 weeks may cause confusion (it is not in line with timescales of the Environmental Assessment Regulations 1999);
• suggests that it is important that impact and cost implications are known, particularly for smaller businesses;
• suggests cost implications quoted appear to be 'on the high side'; and
• the acronym 'RIA' may be confusing, usually used to denote Retail Impact Assessment.

Glasgow City Council, Development and Regeneration Services

• believes that proposals present the most sustainable solution in ensuring compliance with EC Directive 97/11/EC.

The Highland Council, Comhairle na Gaidhealtachd, Planning and Development

• in relation to the suspension of operations, suggests that a preferable and more logical procedure would be to set a date in the list of sites, to encourage operators either to seek a screening direction from the Scottish Ministers or to submit the required information to the planning authority, dates set for this purpose however must provide for the period to be reasonable and open to extension by agreement;
• suggest the conditions under which they are presently working are likely to be less restrictive than those they propose in the ROMP applications, therefore it is unclear what impetus exists for mineral operators to appeal against any non-determination of their application;

• suggest there are a number of inaccuracies in the Draft regulation (the quoting of paragraph numbers);
• claims the RIA fails to take account of the fact that no planning fee is payable to local planning authorities for applications under ROMP; and
• suggest it would be helpful to provide a simple to understand booklet including a step by step guide to the process to follow (including the possible need for an EIA) but also set a set of illustrative modern conditions for smaller mineral operators.

North Ayrshire Council, Development and Promotion

• suggest new regulations will impact primarily on the mineral industry by imposing compliance costs to prepare Environmental Statements;
• suggest EIA may be a recurring cost at intervals of 15 years for some long lasting developments;
• welcome new legislation as it will make clear exactly what information is required to suitably process mineral review applications;
• recognise there will be additional administrative and professional workload implications for planning authorities;
• suggest the issue of compensation is not addressed in the consultation and is an area of concern;
• suggest there may be instances where an ES identifies measures which affect the economic structure of the operation and as a consequence lead the Authority towards restrictions which entail compensation; and
• recommend the Scottish Executive produce further guidance to overcome any potential problems.

Renfrewshire Council, Planning and Transport

• agree with all the proposals;

• suggest that applying common publicity arrangements to all ROMP applications is appropriate in the interests of consistency; and
• believe that principle regulations should apply to ROMP applications where a Council has an interest, consider it necessary in the interests of transparency and consistency.

West Dunbarton Council, Development Department

• support the removal of deemed approval provisions;
• agree that failure to comply should result in suspension of existing consents and the temporary halt of operations, avoiding the likelihood of frivolous appeals, if it is made clear to appellants that compensation would not be paid during the period that operations are suspended;
• suggest some ROMP applications could still be delayed;
• suggest the proposed regulations should be made retrospective, there are no time restrictions on ROMP applications already submitted, allowing them to continue under environmentally inadequate, pre-review conditions;
• suggest the four month consideration date may cause problems when information on examination is wrong or inadequate, in this event planning authorities should set a new date for the submission of the necessary information and the four month period should start from when the new information is submitted;
• believe the right of appeal procedure to be fair but leaves no allowance for a claim of compensation by the applicant when it is felt that the planning authority have been unreasonable or incorrect;
• believe the use of advertising is important in involving the public in the early stages of ROMP applications;
• agree that planning authorities (with a relevant interest in land) should adopt the same screening procedures as other applicants;
• suggest that all future ROMP applications should carry a fee based, on existing fee regulations; and
• suggest it is also unclear whether or not claims for expenses can be made for appeals for failure to determine a ROMP within the statutory four months.

West Lothian Council, Strategic Services

• support the removal of deemed approval provisions;
• agree that suspending old mineral working permissions would prevent developers causing undue delay in the submission of an EIA; and
• suggest the only disappointing aspect of the proposals is that the changes will not be retrospective.

Welcomes proposals but offered no comments

North Lanarkshire Council

Local Authorities, Environmental Health

Welcomes proposals and offered comments

East Lothian Council, Environment and Technical Services

• agrees change is needed to conform to the European Directive

Mineral Operators/Organisations

Welcomed proposals but offered no comments

Bowman Planton Associates (particularly suspension and appeal proposals).

Offered comments

Geddes Group

• suggest if proposed legislation was introduced there would be no sanction available to ensure that actions required by planning authorities were progressed timeously, despite the effort and expense incurred by the applicant;
• proposals 2 and 3 indicate a pressure on applicants to ensure their compliance;
• suggests the cost of a 'right of appeal' would be borne on the applicant when the fault could potentially be through the inaction of the planning authorities;
• believes that the introduction of common publicity arrangements is fair to all parties;
• agrees that Principle Regulations should apply to ROMP applications where a Council has an interest;
• suggests compliance with the requirements of the current and proposed legislation is becoming an increasing burden;
• the expenditure that applicants are expected to meet are excessive and are outwith any concern of the relevant local planning authority;
• suggests the cost of EIA should be the same regardless of the size of the business; and
• most of the costs should fall on the mineral operators.

The Mineral Planning Group

• suggest a full comprehensive list of all registered Interim Development Orders be made available on the web including names, locations, mineral type and NGR.

Quarry Products Association

• accept that court decisions have made it necessary to rescind the deemed approval provisions of primary legislation but would like to be reassured that it is possible to amend primary legislation in the same way through secondary legislation because if in doubt, these regulations may also be subject to further legal challenge;
• support the right of appeal against non-determination but suggest the period of appeal should be shortened to 12 weeks;
• believe right of appeal should also apply to cases where an ES is not required;
• suggest it is inequitable to suspend an active quarry operation, suggesting that the solution is to retain the suspension facility but only when an appeal is lodge under para. 6 procedures;
• believe the minimum period of 6 weeks to provide an ES is to short;
• suggest it is essential that EIA are carried out properly; and
• believes that at certain times of the year some information is impossible to gather and EIA may be impossible to complete within the time constraints of the Planning Authority, therefore a right of appeal is essential and suggests the minimum period to submit an EIA should be extended to 6 months; and
• clarification is needed on whether the EIA should cover the part of the site that has to be worked over the 15 year period only.

Tarmac Northern Limited

• suggest amending legislation to remove the deemed approval provisions will be robust enough to avoid legal challenge;
• suggest the penalty of suspension is rather draconian;
• suggest the proposals do not leave enough time to submit an ES, resulting in the suspension of a quarry operation;
• suggests data gathering may be seasonal and may not be a collectable at the time of year to which a notice period relates;
• suggest the proposals do not give the operator the right of appeal in circumstances where the date by which the submission is required is not achievable, therefore request that the minimum time period for submission is extended to 6 months and that a right of appeal is given against a notice period provided by the planning authority;
• strongly support the introduction of right of appeal against non-determination of ROMP applications;
• support the standardisation of the publicity procedures;
• agree that the principle regulations should apply to ROMP applications where the council have an interest; and
• suggest the additional cost of an EIA will be more acutely felt at the many quarries where profit margins are minimal, at these sites the cost implications could be very significant.

Others

Welcomed proposals and offered comments

I R Abercrombie QC and Dr M Sales

• suggest operators should only have to supply an EIA for the areas of the permission that will be operated on within the review period and that some areas of the site should be recognised as dormant, suggesting current legislation fails to do this.

PPCA Ltd Chartered Consultant Town Planners and Landscape Architects

• believe EIA (Scotland) Regulations 1999 should be assessed against 'modern day' issues such as visual impact, noise, dust and transportation.

The Royal Institution of Chartered Surveyors in Scotland

• concerned about the quality of EIA being undertaken;

• suggest guidance could be issued on the content of the EIA and ES which clarifies the application of the criteria and thresholds contained in Circular 15/99 and Planning Advice Notes (PAN) 58 (pages 37/8);
• suggest planning authorities should take a reasonable view and require assessments of only those subjects as are necessary, so that small sites should not have to experience unnecessary financial burden;
• legislation providing compensation for Phase 1 and 2 sites but doesn't include dormant sites, suggesting there may be difficulties in achieving an acceptable balance between sterilisation and compensation;

• suggest the need to clarify whether the regulations will be applied to applications which have yet to be determined or simply those which will be made after the Regulations come into effect;
• concerned that removing the deemed approved provisions potentially allows an open-ended time period for the Planning Authority and suggest new regulations should be clear about acceptable timescales;
• suggest sufficient time for more complex procedural requirements to be met as in some case ES can take a number of years to be completed;
• suggest that the time increase for complying with various requirements need only be 4 weeks;
• suggest 3 months is adequate time for a planning authority to provide written notice of determination; and
• suggest the introduction of a right of appeal may bring with it heavy costs and lengthy timescales, suggesting another mechanism should be found; and
• Will be additional costs for statutory consultees.

Scottish Environment Protection Agency

• suggest the wording in para. 5 of Annex B gives the impression that operators would not be required to apply for review until the expiry date of their current permission and be permitted to carry on operations so long as the EIA was being undertaken, suggesting that an appropriate system would be for operators to be required to go through the review process in advance of expiry of their current consent (e.g. at least 4 months in advance to take account of the statutory period cited in the proposed regulations), in order that potential delays in implementation are kept to a minimum;
• claims the proposal in relation to compliance costs, fails to point out the potential savings made by avoiding costly court cases that may result from legal challenges.

Scottish Natural Heritage

• fully support the proposed Regulations;

• suggest that the regulations be applied to applications yet to be determined rather than to only those which will be made after the Regulations come into effect;
• there will be cost implications on consultees such as SNH;
• concerned the quality of analysis in some Environmental Statements is inadequate, as a result failing to identify the means to avoid, reduce or mitigate such impacts;
• suggest that failure of operators to identify appropriate conditions through EIA should be deemed as failure on the operator's behalf, resulting in suspension of the development;
• suggest all opportunities to enhance and maintain the protection of natural heritage resources are taken through the planning process;
• suggest that detailed restoration proposals are contained within planning applications and that implementation and aftercare are assured;
• suggest mineral operators should identify and address environmental impacts of existing mineral developments through EIA; and
• suggest that further guidance should be issued in relation to Circular 15/99 and the criteria for determining if an EIA is required for ROMP cases should confirm whether the thresholds relate to the total area of mineral working or solely the area which remain to be worked.

Scottish Wildlife Trust

• supports all 6 proposals;

• suggest the regulations in relation to peat extraction sites are deficient and in need of updating to reflect current realities;
• suggest peat working have serious environmental effects even at the smallest scale, therefore environmental impact will have need to be formally assessed for all peat extraction sites, akin to the guidance for coal mines; and
• suggest that where there is any case of ROMP applying to old peat extraction permissions, then an EIA should be required in every case.

Offered Comments

Health and Safety Executive

• suggest they should only be consulted on the EIAs that are within the consultation zone that they have notified to Planning Authorities (those zones surrounding hazardous installations) as is the procedure in England and Wales.

Welcomed proposals but offered no comments

Central Scotland Countryside Trust

Commissioner for Local Administration in Scotland

Historic Scotland

Responded but offered no comments

The Association for the Protection of Rural Scotland

British Geological Survey

Forestry Commission

The Garden History Society in Scotland

National Farmers Union for Scotland

The Royal Fine Art Commission for Scotland

Strategic Rail Authority

List of Respondents

I R Abercrombie QC
Aberdeenshire Council
Angus Council
Association for the Protection of Rural Scotland
Bowman Planton Associates
British Geological Survey
Central Scotland Countryside Trust
Comhairle Nan Eilean Siar
Commissioner for Local Administration in Scotland
East Lothian Council
Falkirk Council
Fife Council
Forestry Commission
Garden History Society in Scotland
Geddes Group
Glasgow City Council
Health and Safety Executive
Historic Scotland
Highland Council (Comhairle na Gaidhealtachd)
Mineral Planning Group
National Farmers Union for Scotland
North Ayrshire Council
North Lanarkshire Council
PPCA Ltd Town Planning and Landscape Consultants
Quarry Products Association
Renfrewshire Council
Royal Fine Art Commission for Scotland
Royal Institution of Chartered Surveyors in Scotland
Dr M Sales
Scottish Natural Heritage
Scottish Wildlife Trust
Strategic Rail Authority
Tarmac Northern Limited
West Dunbarton Council
West Lothian Council