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8. MINOR RECOMMENDATIONS

This section comprises minor recommendations, primarily to clarify language and meaning of those other Parts of the GPDO which the evidence showed did not
require significant reform. Accordingly, unlike the previous section, the evidence and argument is included under the heading of "issues" rather than "key questions". As for the previous section, each part of the GPDO begins with a précis of the PDR, and concludes with recommendations for reform of that Part.

8.1 SUNDRY MINOR OPERATIONS (PART 2)

Current PD limits, conditions and exclusions

Class 7 permits the erection, construction, maintenance, improvement or alteration of a gate, fence, wall or other means of enclosure.

Class 7 does not permit:

• construction of any gate, fence, wall or other means of enclosure higher than one metre above ground level within 20 metres of a road, or otherwise higher than two metres above ground level;
• any maintained, improved or altered gate, fence, wall or other means of enclosure exceeding its former height (if higher than either case above);
• any gate, fence, wall or other means of enclosure surrounding a listed building.

Class 8 permits the formation, laying out and construction of a means of access to a road which is not a trunk road or a classified road, where that access is required in connection with development permitted by any class in this Schedule other than Class 7.

We have dealt with Part 2 in relation to householder development in our separate report ⁵². We have also dealt with Class 8 in relation to our proposals for a new Class of private ways in Section 7.1 of this report. Therefore this Section deals with non-householder issues in relation to Class 7.

Issues

There were few responses to this aspect of the research. Natural heritage interests expressed concern at the scope for misinterpretation of Class 7, in potentially enabling the extensive enclosure of upland areas with fencing, and associated environmental consequences (visual intrusion, public access), especially from deer fencing. However, most of these exceed 2 metres in height, and so fall outside the permitted development limits.

Natural heritage interests suggest that all means of enclosure should be restricted to a height of one metre everywhere except around land exempt from public access under the Land Reform (Scotland) Act 2003, where the present 2 metre limit would apply, but attaching a new condition to Class 7, requiring the provision of reasonable access in terms of the Act. However, we do not consider that the available evidence justifies such a significant reduction in PDR, nor that the GPDO should be used to address issues of public access, which are properly a matter for other legislation.

Scope for extensive linear fencing across sensitive rural landscapes would not, in our view, be enabled by Class 7, which is concerned with "walls, fences and other means of enclosure" (our emphasis), and confirmed in Prengate Properties Ltd v Secretary of State (1973, 25 P& CR 311)⁵³, in which a "wall" was considered to be governed by the words "other means of enclosure", meaning that this did not apply to a free-standing wall constructed in the middle of a garden, as it failed to provide any form of enclosure.

Accordingly, we propose no recommendations for Part 2 of the Order, aside from those contained in our separate report on Householder Development.

8.2 TEMPORARY BUILDINGS AND USES (PART 4)

Current PD limits, conditions and exclusions

Class 14 permits the provision on land of buildings, moveable structures, works, plant or machinery required temporarily in connection with and for the duration of operations being or to be carried out on, in, under or over that land or on land adjoining that land.

Class 14 does not permit:

• mining operations
• operations where planning permission is required but has not been granted or deemed to be granted

And provided that:

• any building, structure, works, plant or machinery is removed on completion of the operations;
• any adjoining land used for such temporary purpose is reinstated.

Class 15 permits the use of land (other than a building or land within the curtilage of a building) for any purpose for a maximum of 28 days in any calendar year, and the erection or placing of moveable structures on the land for the purposes of that use.

Class 15 does not permit use of land:

• as a caravan site or
• an open air market.

Issues

Class 14 rights are often used to allow for temporary structures needed during redevelopment of existing electronic communications infrastructure: planning permission may be granted to replace an existing mast supporting equipment for one electronic communications provider for a larger shared mast to be used by several other providers. To allow for a continuation of existing communication services while the replacement mast is built, a temporary structure will be installed under Class 14.

Statutory undertakers use this class for temporary works, particularly in terms of construction compounds and access roads.

Responses to the GPDO questionnaire indicated that the priority here was to clarify the meaning of "temporary" under Class 14 and the operation of the 28 day limit under Class 15. Article 2 of the GPDO does not include an interpretation of "temporary", nor is there an interpretation section specifically for Part 4. The case law review in Chapter 3 indicated that these interpretations have been problematic in the past, but the Courts have clarified their meaning, ie "temporary" is defined by the maximum number of days permitted within a calendar year, and that it does not include the retention of ancillary structures on other days, which would have the effect of giving an appearance of permanence to the use of the land (Class 15 specifically refers to "movable structures..for the purposes of that use").

There were limited calls for more specificity about the types of uses and periods allowed under Class 15, such as 'open air market' (although Class 15 specifically excludes the temporary use of land for this purpose), and recognition that certain uses and their impacts, such as motor sports and car boot sales, can be controlled under the Licensing Acts. Motor sports and quad biking are not similar activities, in response to sustained nuisance a direction similar to an Article 4 direction could apply to a specific site. There were some concerns about lack of protection in sensitive areas. There was some concern about generally poor understanding of the implications for temporary operations, including permitted developments, directly affecting scheduled monuments, and that these require specific consent under the Ancient Monuments and Archaeological Areas Act 1979.

Improved understanding and interpretation of the terms of these Classes would assist the avoidance of unintentional unauthorized development, and thus assist efficient enforcement.

Recommendations

• The meaning of "temporary" should be clarified by reference to relevant case law.
• There should be a time limit for the reinstatement of land after operations cease, similar to the 28 day period under Part 15 (mineral exploration)

8.3 CARAVAN SITES (PART 5)

Current PD limits, conditions and exclusions

Class 16 permits the use of land, other than a building, as a caravan site, in the circumstances specified in paragraphs 2 to 10 of Schedule 1 to the Caravan Sites and Control of Development Act 1960, provided that the use is discontinued when the circumstances specified in these paragraphs cease to exist, whereupon all caravans on the site are to be removed as soon as reasonably practicable.

Class 16 does not permit use of land for winter quarters in relation to paragraph 10 of Schedule 1 of the 1960 Act.

Class 17 permits development required by the conditions of a site licence for the time being in force under the 1960 Act .

Issues

Responses to the questionnaire survey indicated some concern that Part 5 is complex and difficult to enforce, due to vague definitions and the requirement for Part 5 to be read in conjunction with the Caravan Sites and Control of Development Act 1960. In particular, there was concern as to the meaning of Class 17 in practice. One suggestion was that the 1960 Act should be amended to remove all planning issues and clearer Classes 16 and 17 of the GPDO created to encapsulate all of these matters. Alternatively, Part 5 of the 1960 Act should be incorporated into the Order. On the other hand, there were concerns that there was outdated reliance on a very old piece of associated legislation that employs outdated terms such as "caravan" that should exclude large mobile homes.

There was some concern about whether Class 17 applies to any land or only land already established as a caravan site (eg off site works for drainage).

Recommendations

• Class 16 should be rewritten to be inclusive and avoid need to refer to the 1960 Act.
• 'Caravan' should be specifically defined in Article 2, instead of reference only to Part 1 of the 1960 Act.
• Establish a new Leisure Uses Part of the Order, bringing together caravan sites and amusement parks (Part 22).

8.4 REPAIRS TO SERVICES (PART 10)

Current PD limits, conditions and exclusions

Class 28 permits the carrying out of any works for the purposes of inspecting, repairing or renewing any sewer, main, pipe, cable or other apparatus, including breaking open any land for that purpose, provided that:

on completion of the works, or nine months after commencement of the works (whichever is sooner) the land shall be restored to the condition it was in before the works were carried out, or to a condition acceptable to the planning authority.

Issues

There were very few responses to this aspect of the research. One local authority planning officer considered that such works should be carried out on the same "track" as existing (implying that repair or renewal should not permit realignment) whilst another felt that such rights should be reduced in Conservation Areas. A third view expressed concern that such repairs could have implications for archaeological sites, and scheduled monuments in close proximity to sewers, mains and pipes.

Accordingly, we have no recommendations to make for changes to this Part of the Order.

8.5 DEVELOPMENT UNDER LOCAL PRIVATE ACTS OR ORDERS (PART11)

Current PD limits, conditions and exclusions

Class 29 permits development authorized by:

• a local or private Act of Parliament or of the Scottish Parliament;
• an order approved by both Houses of Parliament or the Scottish Parliament; or
• any order made under section 14 or 16 of the Harbours Act 1964.

Which in each case designates specifically the nature of the development authorised and the land upon which it may be carried out.

Class 29 does not permit:

• the erection, construction, alteration or extension of any building, bridge, aqueduct, pier or dam
• the formation, laying out or alteration of a means of access to any road used by vehicular traffic

Unless the approval by the planning authority of the detailed plans and specifications is first obtained for siting, design and external appearance.

In effect, Part 11 provides an outline planning permission only, since prior approval of the planning authority is required for buildings and some engineering works.

Issues

There were some concerns about the perceived generally wide scope of this part of the Order, and that permitted developments under this Class were subject to few restrictions, such as the potential impact on sensitive designated areas, or the natural heritage generally, and the need to ensure that Private Bill procedures are subject to EIA process.

Lichfield et al (2003) ⁵⁴ point out that "the lack of EIA controls over Part 11 arises because the 1985 EC Directive on Environmental Assessment specifically did not apply to acts under national legislation, and parliament did not seek to restrict the GPDO for older acts which had not been subject to environmental assessment".

The main function of Part 11 is to enable development to proceed which has been previously considered appropriate through other legislation. Network Rail, in response to the GPDO questionnaire survey, suggest that the position should be the case as in England, where they have sole rights to use the powers advanced by the enabling Acts of construction. However, the review of the English GPDO⁵⁵ identified concerns about the use of equivalent PDR to undertake works including bridge replacement, track upgrading, signaling facilities and alterations to buildings and other infrastructure, all of which are seen as being vital to maintenance, upgrading and safety.

Article 3(7) states that any development falling within Part 11 is not authorized until the prior approval of the planning authority is obtained (unless the Act or order contains provisions to the contrary). It was also pointed out that no time limit is specified within which the prior approval or otherwise of the planning authority should be given. There was some suggestion that this Part of the GPDO should be deleted, or that prior approval requirements should be removed, in favour of clarifying consultation provisions with local authorities.

Recommendations

• Planning authorities should be required to give notice of their decision within 28 days of receipt of a prior approval request. Failure to do so should be regarded as deemed refusal;
• The Scottish Executive should give consideration to bringing the scope of Part 11 of the GPDO within the terms of the 1985 EC Directive on Environmental Assessment.

8.6 DEVELOPMENT BY LOCAL AUTHORITIES (PART 12)

Current PD limits, conditions and exclusions

These Classes ⁵⁶ provide a wide range of small works and infrastructure by local authorities.

Class 30 permits the erection or construction and the maintenance, improvement or other alteration by a local authority of:

• any building, works or equipment, provided it is: not higher than 4 metres or greater than 200 cubic metres capacity; is on land belonging to or maintained by the local authority; is works or equipment required for any of the authority's purposes or functions, but not as statutory undertakers.
• lamp standards, refuse bins, public shelters and similar structures or works required in connection with the operation of any public service by the authority.

Class 31 permits the carrying out by a roads authority

• any works required for the maintenance or improvement of a road, on land within the boundaries of a road, and where such works involve development.
• works required for or incidental to the maintenance or improvement of a road, on land outside but adjoining the boundary of that road.

Class 33 permits the carrying out by a planning authority, within their own district:

• works for the erection of dwellinghouses, provided those works conform to an adopted local plan.
• any development under the Housing (Scotland) Act 1987 (except works for the erection of dwellinghouses), provided those works conform to an adopted local plan.
• any development under any legislation, up to an estimated cost of £100,000, but not: any of the "bad neighbour" developments listed in Schedule 2 of the Order; or development causing a material change in the use of any buildings or other land.

Issues

Responses from both local authorities and other organizations to the GPDO questionnaire suggested that this part of the GPDO required updating and rationalization into one Class. In particular, the £100k limit in Class 33 requires updating in the light of inflation since 1992, and indeed some other maximum should be specified other than a particular value of work, otherwise continual updating of this figure will be required.

Previous research indicated concerns about the impact on the natural heritage of works under Class 31 ⁵⁷, and this was reinforced in some of the responses to the questionnaire survey. In response, one suggestion was that this could be partly addressed by clarification of references to the 'boundary' of a road, and by emphasising that these PDR are intended to apply to temporary works linked to road maintenance or improvement.

Recommendations

• This part of the GPDO should be specified as one Class of "Development by Local Authorities" and should comprise the following:

8.7 MINERAL EXPLORATION (PART 15)

Current PD limits, conditions and exclusions

Class 53 permits development on any land during a period not exceeding 28 consecutive days consisting of:

• the drilling of boreholes;
• the carrying out of seismic surveys; or
• the making of other excavations.

All for the purpose of mineral exploration, and the provision or assembly on that land or adjoining land of any structure required in connection with any of those operations.

Class 53 does not permit:

• drilling of boreholes for petroleum exploration;
• any operation within 50 metres of any part of an occupied residential building or a building occupied as a hospital or school;
• any operation within a National Scenic Area or a site of archaeological or special scientific interest;
• use of any explosive charge of more than 1 kilogram;
• any excavation deeper than 10 metres or greater than 12 square metres in surface area;
• more than 10 excavations within any area of 1 hectare within the land during any period of 24 months;
• any structure higher than 12 metres, or higher than 3 metres within 3 kilometres of the perimeter of an aerodrome.

And provided that:

• no operations are carried out between 6pm and 7am;
• no trees on the land are removed, felled, lopped or topped and nothing else is done on the land which is likely to harm or damage any trees, unless with the agreement of the planning authority;
• before any excavation (other than a borehole) is made, any topsoil and any subsoil shall be separately removed from the land to be excavated and stored separately from other excavated material and from each other;
• within 28 days from the end of operations any structure permitted by this class and any waste material arising from development permitted by this class is removed from the land, any borehole is adequately sealed, any other excavation is filled with material from the site, the surface of the land on which any operations have been carried out is levelled and any topsoil replaced as the top layer, and the land is restored to the condition it was in before the development took place, including the carrying out of any necessary seeding and replanting, and so far as is practicable (unless otherwise agreed with the planning authority)

Class 54 permits development on any land consisting of:

for the purposes of mineral exploration, and the provision or assembly on that land or on adjoining land of any structure required in connection with any of those operations.

Class 54 does not permit:

• drilling of boreholes for petroleum exploration;
• such development without the prior notification of the planning authority;
• development where the relevant period has not elapsed;
• use of any explosive charge of more than 2 kilograms;
• any excavation deeper than 10 metres in depth or more than 12 square metres in surface area;
• any structure higher than 12 metres.

And provided that:

• there is compliance with any details in the notification to the planning authority;
• no trees on the land are removed, felled, lopped or topped and nothing else is done on the land which is likely to harm or damage any trees, unless with the agreement of the planning authority;
• before any excavation other than a borehole is made, any topsoil and any subsoil shall be separately removed from the land to be excavated and stored separately from other excavated material and from each other;
• within 28 days from the end of operations any structure permitted by this class and any waste material arising from development permitted by this class is removed from the land, any borehole is adequately sealed, any other excavation is filled with material from the site, the surface of the land on which any operations have been carried out is levelled and any topsoil replaced as the top layer, and the land is restored to the condition it was in before the development took place, including the carrying out of any necessary seeding and replanting, and so far as is practicable (unless otherwise agreed with the planning authority).

Under Article 7 of the GPDO a planning authority may, within 21 days of notification, make a Direction removing the PDR under this Class because (a) the development lies within a National Scenic Area, site of archaeological interest, or site of special scientific interest; or (b) they consider that it would cause or contribute serious detriment to the amenity of the area, or adversely affect the setting of a category A Listed B building; or (c) it would be a serious nuisance to nearby inhabitants of a residential building, hospital or school; or (d) it would endanger aircraft using a nearby aerodrome.

Issues

There were very few responses to this aspect of the research. One suggestion was that there may be scope to reduce the number of Classes in this part. Two other respondents noted that this was the only part of the GPDO where restrictions applied in relation to sites of archaeological interest and that this might be extended to developments of equivalent impact in other Parts of the order.

The Civil Aviation Authority expressed concern that developments within these Classes should take account of the Aerodrome Safeguarding Direction, whereby PDR should not be taken up within 13km of an aerodrome without the prior approval of the planning authority, consistent with Circular 2/03. A particular concern in relation to mineral exploration was the potential effect of open water in mineral development on attracting wildfowl and water features in reinstatement, or backfill with domestic waste. However this concern appears to be addressed by the provisions of Article 7 as summarized at (d) above.

Recommendations

• These two Classes should be combined into one Class, the limitations and conditions rationalized accordingly, and making clear the requirements for reinstatement in the case of the temporary use of land for this purpose.

• There should be a requirement for prior notification of the planning authority where any part of the development falls within 13 km of an aerodrome.
• Consideration should be given to combining Part 15 with Parts 16-19 in a rationalized minerals (including opencast mining) Part of the Order.

8.8 DEVELOPMENT ANCILLARY TO MINING OPERATIONS (PART 16)

Current PD limits, conditions and exclusions

Class 55 permits The carrying out of operations for the erection, extension, installation, rearrangement, replacement, repair or other alteration of any:

• plant or machinery;
• buildings;
• private ways or private railways or sidings; or
• sewers, mains, pipes, cables or other similar apparatus,

All on land used as a mine.

Class 55 does not permit:

• development other than on an approved site;
• development other than in connection with the winning and working of minerals at that mine or of minerals brought to the surface at that mine, or the treatment, storage or removal from the mine of such minerals or waste materials derived from them;
• development which would materially affect the external appearance of the mine;
• any building, plant or machinery higher than 15 metres above ground level where it is not in an excavation;
• any building, plant or machinery in an excavation higher than 15 metres above the excavated ground level, or 15 metres above the lowest point of the unexcavated ground immediately adjacent to the excavation;
• any building (other than a replacement building) exceeding 1,000 square metres in floor area;
• any replaced, extended or altered building exceeding 125% of the cubic content of the existing building, or a floor area exceeding the floor area of the existing building by more than 1,000 square metres.

And provided that, within 24 months from the date when mining operations have permanently ceased (or any longer period agreed with the planning authority) all buildings, plant or machinery permitted by this class are removed from the land, and the land is restored, so far as is practicable, to its condition before the development took place, or restored to a condition agreed with the planning authority .

Class 56 permits operations for the erection, installation, extension, rearrangement, replacement, repair or other alteration of any:

Provided it is on land used as a mine or on ancillary mining land, and with the prior approval of the planning authority.

In addition, and within 24 months from the date when mining operations have permanently ceased (or any longer period agreed with the planning authority) all buildings, plant or machinery permitted by this class are removed from the land, and the land is restored, so far as is practicable, to its condition before the development took place, or restored to a condition agreed with the planning authority .

Class 56 does not permit:

• development other than on an approved site;
• development unconnected with the operation of the mine, the treatment, preparation for sale, consumption or utilization of minerals won or brought to the surface at that mine, or the storage or removal from the mine of such minerals, their products or waste materials derived from them.

Prior approval shall not be refused or granted subject to conditions unless the planning authority consider that: the proposed development would injure the amenity of the neighbourhood; that modifications cannot reasonably be made or conditions be reasonably imposed in order to avoid or reduce that injury; or the proposed development could be reasonably sited elsewhere.

Class 57 permits, with the prior approval of the planning authority, development required for the maintenance or safety of a mine or a disused mine or for the purposes of ensuring the safety of the surface of the land at or adjacent to a mine or disused mine.

Such development rights are not available to the Coal Authority or any licensed operator within the meaning of section 65(1) of the Coal Industry Act 1994, since they hold separate PDR under Part 17.

Prior approval of the planning authority is not required if:

• there would be no material effect on the external appearance of the mine or disused mine at or adjacent to which the development is to be carried out
• no building, plant, machinery, structure or erection would exceed a height of 15 metres above ground level, or where a building, plant or machinery is rearranged, replaced or repaired, would exceed a height of 15 metres above ground level or the height of what was replaced, rearranged or repaired, whichever is the greater
• the development consists of the extension, alteration or replacement of an existing building, provided that the cubic content of the building as extended, altered and replaced does not exceed that of the existing building by more than 25%, and the floor area of the building as extended, altered or replaced does not exceed that of the existing building by more than 1,000 square metres.

Prior approval shall not be refused or granted subject to conditions unless the planning authority consider that: the proposed development would injure the amenity of the neighbourhood; that modifications cannot reasonably be made or conditions be reasonably imposed in order to avoid or reduce that injury; or the proposed development could be reasonably sited elsewhere.

Issues

There were very few responses to the GPDO questionnaire surveys expressing concerns about this part of the Order, other than the scope to simplify and/or rationalize the classes, and clarify whether plant such as screening and crushing plant, tar coating and concrete batching plants fall within the PDR of this Part.

We have recommended elsewhere that prior approval of the planning authority should be abolished where presently required in respect of siting, design or external appearance.

With the cessation of underground mining in Scotland, Part 16 is redundant. PDR for opencast coal mining should be the same as for mineral exploration.

Recommendations

• Consideration should be given to combining Part 16 with Parts 15-19 in a rationalized minerals (including opencast mining) Part of the Order.

8.9 COAL MINING DEVELOPMENT BY THE COAL AUTHORITY AND ITS LICENSEES (PART 17)

Current PD limits, conditions and exclusions

Classes 58-62 ⁵⁹ provide for a range of permitted developments at coal mines, restricted to "designated seam areas" started before 1 ^st July 1948.

Class 58 permits:

• the winning and working underground of coal or coal-related minerals in a designated seam area; or
• the carrying out of development underground which is required in order to gain access to and work coal or coal-related minerals in a designated seam area.

Subject to detailed conditions about compliance with an approved restoration scheme, or otherwise removal of all buildings, plant and machinery etc and the site restored to its prior condition, as agreed with the planning authority.

Subsequent Classes then permit a range of minor developments at an authorized site where required for the purposes of the mine in connection with coal mining operations, in some cases subject to the prior approval of the planning authority.

Class 59 permits any development required for the purposes of a mine which is carried out on an authorised site at that mine by a licensed operator in connection with coal-mining operations.

Provided that, within 24 months from the date when mining operations have permanently ceased (or any longer period agreed with the planning authority) all buildings, plant or machinery permitted by this class are removed from the land, and the land is restored, so far as is practicable, to its condition before the development took place, or restored to a condition agreed with the planning authority .

Class 59 does not permit:

• a material change to the external appearance of the mine;

• no building, plant, machinery, structure or erection higher than 15 metres above ground level, or rearranged, replaced or repaired building, plant or machinery is higher than 15 metres above ground level or the height of what was replaced, rearranged or repaired, whichever is the greater;

• any building erected (other than a replacement building) having a floor area greater than 1,000 square metres;
• Development where the cubic content of any replaced, extended or altered building would be more than 125% of the cubic content of the existing building, or more than 1,000 square metres greater than the floor area of that building;
• a new surface access to underground workings or improving an existing access (which is not an active access) to underground workings;
• development on land which is not part of an authorised site.

Class 60 permits any development required for the purposes of a mine which is carried out on an authorised site at that mine by a licensed operator in connection with coal-mining operations and with the prior approval of the planning authority.

Provided that, within 24 months from the date when mining operations have permanently ceased (or any longer period agreed with the planning authority) all buildings, plant or machinery permitted by this class are removed from the land, and the land is restored, so far as is practicable, to its condition before the development took place, or restored to a condition agreed with the planning authority .

Class 60 does not permit:

• creating a new surface access to underground workings or of improving an existing access (which is not an active access) to underground workings; or
• development on land which is not part of an authorised site;

Prior approval shall not be refused or granted subject to conditions unless the planning authority consider that: the proposed development would injure the amenity of the neighbourhood; that modifications cannot reasonably be made or conditions be reasonably imposed in order to avoid or reduce that injury; or the proposed development could be reasonably sited elsewhere.

Class 62 permits the carrying out by the Coal Authority or a licensed operator, with the prior approval of the planning authority, of development required for the maintenance or safety of a mine or a disused mine or for the purposes of ensuring the safety of the surface of the land at or adjacent to a mine or disused mine.

Prior approval is not required if:

• the external appearance of the mine or disused mine at or adjacent to which the development is to be carried out would not be materially affected;
• no building, plant or machinery, structure or erection would exceed a height of 15 metres above ground level, or
• where any building, plant or machinery, structure or erection is rearranged, replaced or repaired, it would not exceed a height of 15 metres above ground level or the height of what was replaced, rearranged or repaired, whichever is the greater
• the development consists of the extension, alteration or replacement of an existing building, whereby the cubic content of the building as extended, altered or replaced does not exceed that of the existing building by more than 25%
• the floor area of the building as extended, altered or replaced does not exceed that of the existing building by more than 1,000 square metres.

Prior approval shall not be refused or granted subject to conditions unless the authority are satisfied that it is expedient to do so because the proposed development would injure the amenity of the neighbourhood and modifications could reasonably be made or conditions reasonably imposed in order to avoid or reduce that injury, or the proposed development ought to be, and could reasonably be, sited elsewhere.

Issues

These rights are now only used by private coal mining operations. The Coal Authority was established by the Coal Industry Act 1994. Its functions include: holding and disposing of interests and rights in or in relation to the unworked coal and other property which is transferred to it or acquired under the Act; the carrying out of functions with respect to the licensing of coal mining operations. There are now no operational deep mines in Scotland, with all coal mining confined to opencast operations. Accordingly, apart from safety, this Part of the GPDO is redundant, and the PDR for opencast operations should be equivalent to those for mineral operations.

No specific restrictions apply in designated areas, Article 7 Directions do not apply and, in certain circumstances, EIA Regulations do not restrict permitted development under Classes 59-62.

Recommendations

• Consideration should be given to combining Part 17 with Parts 15-19 in a rationalized minerals (including opencast mining) Part of the Order.

8.10 WASTE TIPPING AT A MINE (PART 18)

Current PD limits, conditions and exclusions

These classes enable the creation of spoil heaps or infilling of excavations at mining sites using materials derived from on-site operations.

Class 63 permits the deposit, on premises used as a mine or on ancillary mining land already used for the purpose, of waste derived from the winning and working of minerals at that mine or from minerals brought to the surface at that mine, or from the treatment or the preparation for sale, consumption or utilization of minerals from the mine.

Class 63 does not permit:

• waste deposited in an excavation if it would be higher than the level of adjoining land, unless this is provided for in a waste management scheme or a relevant scheme;
• greater than 10% increase in the height of the superficial area or height of the deposit (on the date of introduction of the GPDO), unless such an increase is provided for in a waste management scheme or in a relevant scheme.

And provided that the depositing of waste and all other activities in relation to that deposit shall be carried out in accordance with an approved waste management scheme.

Class 64 permits the deposit on land comprised in a site used for the deposit of waste materials or refuse on 1st July 1948 of waste resulting from coal-mining operations.

To exercise such rights 3 months after the coming into operation of the GPDO the development must accord with a restoration scheme approved by the planning authority, or conform to a planning permission.

Issues

The only issue raised in the questionnaire returns was the concern of one respondent about potential risks to archaeological deposits.

No special restrictions apply in designated areas.

With the cessation of underground mining in Scotland, and the provisions of Part 15 being appropriate for opencast coal mining, this Part of the GPDO is redundant and should be deleted.

Recommendations

• Consideration should be given to combining Part 18 with Parts 15-19 in a rationalized minerals (including opencast mining) Part of the Order.

8.11 REMOVAL OF MATERIAL FROM MINERAL WORKING DEPOSITS (PART 19)

Current PD limits, conditions and exclusions

Class 65 permits the removal of material of any description from a stockpile.

Class 66 permits the removal of material of any description from a mineral working deposit other than a stockpile

Provided that the developer has previously notified the planning authority in writing.

These Classes do not permit:

• deposits covering a ground area exceeding 2 hectares, unless the deposit contains any mineral or other material deposited on the land at a date 5 years or less before the date on which it would be removed; or
• deposits obtained from the carrying out of any operations permitted under Part 6 of the GPDO or corresponding provisions contained in a previous development order.

And provided that:

• it is being carried out in accordance with the details given in the notice sent to the planning authority;
• if the planning authority so require, the developer submits for approval a scheme of restoration and aftercare for the site; where such a scheme is required, the site shall be restored and aftercare shall be carried out in accordance with the provisions of the approved scheme;
• development does not commence until the relevant period has elapsed.

Issues

There were very few responses expressing concerns to this aspect of the Order, other than scope for simplifying and/or rationalizing the Classes, and reviewing whether the provisions of Class 66 remain valid, or whether Classes 65 and 66 should be restricted where the deposits are close to residential areas or in 'attractive' landscapes

However, Class 66 is covered by the terms of Article 7 of the Order, whereby the local authority following notification may, within 21 days, make a Direction disapplying the PDR under this Class because (a) it lies within a National Scenic Area, site of archaeological interest, or site of special scientific interest; or (b) they consider that it, solely or in conjunction with other existing development in the area, would cause serious detriment to the amenity of the area or would adversely affect the setting of a category A Listed building; or (c) it would constitute a serious nuisance to nearby inhabitants of a residential building, hospital or school; or (d) it would endanger aircraft using a nearby aerodrome.

Recommendations

• Consideration should be given to combining Part 19 with Parts 15-18 in a rationalized minerals (including opencast mining) Part of the Order.

8.12 DEVELOPMENT BY TELECOMMUNICATION CODE SYSTEMS OPERATORS (PART 20)

Current PD limits, conditions and exclusions

These PDR apply to various forms of telecommunications facilities but are available only to companies granted a licence under Section 7 of the Telecommunications Act.

Class 67 permits the installation of apparatus by licensed telecommunications code system operators. Permission is subject to the development being undertaken on the operator's own land (ie under the operator's ownership or control) or in accordance with conditions subject to which Schedule 2 to the Telecommunications Act 1984 (the "Telecommunications Code") has been applied by the operator's license. Failure by an operator to comply with the code-related conditions in his licence when carrying out development would make the development unauthorized.

The developments permitted comprise:

• The installation, alteration or replacement of any telecommunications apparatus;
• The use of land in an emergency for a period not exceeding 6 months to station and operate moveable telecommunications apparatus required for the replacement of unserviceable telecommunications apparatus, including moveable structures on land for the purpose of that use, and development involving the construction, installation, alteration or replacement of structures, equipment or means of access ancillary to and required for equipment housing.

Class 67 does not permit:

• Development within a National Scenic Area, National Park, Natural Heritage Area, conservation area, historic garden or designed landscape, Site of Special Scientific interest or European Site, or on a Category A Listed Building or scheduled ancient monument, or within the setting of such a building, unless in an emergency, or it involved up to two small antennae on a dwellinghouse not facing a road, or installation of overhead lines on existing poles.
• A ground based mast
• A replacement ground based mast greater than 2 metres higher, or 1 metre horizontally, or 4 metres away from the existing mast;
• Ground based equipment housing higher than 3 metres or more than 90 cubic metres; or if replacement of existing ground based housing would exceed these dimensions;
• New or replacement apparatus (other than equipment housing) higher than 4 metres or more than 2 metres horizontal on a building or other structure;
• Communications apparatus, structures, equipment or means of access required for a ground based mast with planning permission, but which has not been begun;
• New or replacement equipment housing higher than 3 metres or more than 30 cubic metres on a building;
• More than two antennae on a dwellinghouse, or any antenna above the roofline, or in a National Scenic Area, Natural Heritage Area, Site of Special Scientific Interest, European Site, National park, conservation area, historic garden or designed landscape, or within the curtilage of a category A Listed Building or a scheduled monument, on any part of a dwellinghouse which faces a road;
• More than eight small antennae within the cartilage of a non-residential building;
• Any apparatus exceeding 1.5 square metres in ground floor area;
• Any new or replacement apparatus higher than 15 metres above ground level;
• Any new or replacement antenna greater than 2.8 metres high or 1.3 metres wide if on a building/structure more than 15 metres high, or where there would result in more than 8 antennae on the building/structure;
• Any new or replacement antennae greater than 0.9 metres in any dimension on a building/structure less than 15 metres in height, or if it results in more than 4 antennae on the building/structure;
• an access track longer than 50 metres.

And provide that:

• Prior notice to the planning authority for any antenna or equipment housing except in an emergency), including a detailed description and confirmation of compliance with frequency public exposure guidelines ⁶⁰
• Siting of antenna to minimize effect on external appearance of a building;
• Removal of emergency apparatus on cessation of need (and within 6 months in a specified designated area).

Issues

The GPDO was amended by the Communications Act 2003 (Consequential Amendments) Order 2003. This effectively opened up the use of Class 67 for any electronic communications code network operator for the purpose of their electronic communications network. This may include mobile phone operators or broadcasters as specific examples.

The Scottish Executive made clear, in its research specification that, given recent reform and updating of this part of the Order, it was not seeking a fundamental review of this aspect of the GPDO. However, there are concerns that it is very complex and difficult to apply to practical situations. This was reinforced in responses to the GPDO questionnaire, especially by planning authorities, that: Class 67 needs to be re-written in plain English; clarification required regarding ancillary development i.e. access tracks, fences; technical terms require clarification; some terms, including "building", 'apparatus' and 'supporting apparatus' require precise definition in relation to telecommunications development. We also note calls from some local authorities, conservation and recreational bodies for restrictions on extensions to existing masts, restrictions within designated areas and/or a requirement for landscaping conditions.

Operators argued that the provisions of this Class discourage, rather than encourage mast sharing. National Grid Wireless expressed particular concern about continued limited incentive for mast sharing and made detailed suggestions for amendment of this Class which, in their view, should help address this problem.

The extensive limiting criteria is potentially complex and confusing, and thus difficult to interpret by planning authorities.

Recommendations

• The 18 criteria specified in Class 67 should be simplified and more clearly expressed.

This would assist both the developer and the planning authority to more clearly understand and thereby effectively apply the specified permitted development limits.

• All relevant technical terms, including 'building', 'apparatus' and 'supporting apparatus' should be defined within Article 2.
• It should be clarified in the criteria that mast extensions which exceed the maximum height permitted require planning permission.
• Detailed recommendations by National Grid Wireless for amendments to encourage mast sharing should be explored.

8.13 OTHER TELECOMMUNICATIONS DEVELOPMENT (PART 21)

Part 21 Class 68 (other telecommunications development) only applies if Part 20 Class 67 does not.

This part of the GPDO was excluded from the current research because of the Executive's separate work on Digital Switchover.

8.14 DEVELOPMENT AT AMUSEMENT PARKS (PART 22)

Current PD limits, conditions and exclusions

Class 69 permits development on land used as an amusement park consisting of:

• erection of booths or stalls or the installation of plant or machinery to be used for or in connection with the entertainment of the public within the amusement park; or
• extension, alteration or replacement of any existing booths or stalls, plant or machinery so used.

Class 69 does not permit:

• within 3 kilometres of the perimeter of an aerodrome, installed, extended, altered or replaced plant or machinery higher than 25 metres or higher than the height of the highest existing structure, whichever is the lesser,
• in any other case higher than 25 metres;
• any extension to an existing building or structure which would make it more than 5 metres above ground level or higher than the height of the roof of the existing building or structure, whichever is the greater
• in any other case, the height of a building or structure erected, extended, altered or replaced exceeding 5 metres above ground level, or
• development within 25 metres of the curtilage of a dwelling.

Issues

There were no responses to this aspect of the Order. However, there is the opportunity to establish a Leisure Developments category of permitted development, and to include amusement parks and caravan sites (Part 5).

Recommendations

• Establish a new Leisure Uses Part of the Order, bringing together amusement parks and caravan sites (Part 5).

8.15 TOLL ROAD FACILITIES (PART 24)

Current PD limits, conditions and exclusions

Class 71 permits (a) the setting up and the maintenance, improvement or other alteration of facilities for the collection of tolls, and (b) the creation of a hard surface to be used for the parking of vehicles in connection with the use of such facilities.

Class 71 does not permit:

• development within 100 metres (measured along the ground) of the boundary of a toll road
• buildings higher than 7.5 metres excluding any rooftop structure, or 10 metres including any rooftop structure
• the aggregate floor area at or above ground level of any building or group of buildings within a toll collection area, excluding the floor area of any toll collection booth, exceeding 1500 square metres.

And provided that:

• application is made to the planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of the facilities for the collection of tolls

Issues

There were no responses to this aspect of the Order.

Recommendations

• Deletion of the requirement for application to the planning authority for a determination as to whether the prior approval of the authority will be required to the siting, design and external appearance of the facilities for the collection of tolls, in line with our recommendation elsewhere for the deletion of this requirement across the whole Order.

8.16 CLOSED CIRCUIT TELEVISION CAMERAS (PART 25)

Current PD limits, conditions and exclusions

This Part permits the installation, alteration or replacement on a building of CCTV cameras for security purposes. Excluded are developments in a conservation area or National Scenic Area, plus general dimension thresholds, and conditional upon siting so as to minimize its effect on the external appearance of the building or structure on which it is fixed, and its removal as soon as practicable after it is no longer required for security purposes. The rights are not specific to any type of development or user.

Specific consent is required for installation of CCTV cameras on Listed Buildings or Scheduled Monuments.

Issues

There were very few responses to this aspect of the Order. Those received expressed limited concerns about the clarity of the language (although the language in this Class is much less problematic than for other Parts of the GPDO to which we have referred), and that permitted development thresholds could be extended.

Recommendations

• Review size limits for CCTV cameras

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