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7.0 PERMITTED DEVELOPMENT: MAJOR RECOMMENDATIONS

7.1: AGRICULTURAL BUILDINGS AND OPERATIONS (PART 6)

Current PDR

Class 18 permits various agricultural operations on agricultural land which is part of an agricultural unit, and required for the purposes of agriculture, comprising:

• works for the erection, extension or alteration of a building;
• the formation, alteration or maintenance of private ways; or
• any excavation or engineering operations,

The following is not permitted:

• agricultural operations on agricultural land less than 0.4 hectare in area
• the erection, extension or alteration of a dwelling
• a building, structure or works not designed for the purposes of agriculture
• any part of the development within 25 metres of the metalled portion of a trunk or classified road
• any building, or any extended building, larger than 465 square metres in ground area
• a building higher than 3 metres within 3 kilometres of the perimeter of an aerodrome, and 12 metres otherwise
• a building for intensive livestock, or storage of animal waste within 400 metres of the curtilage of any permanent building normally occupied by people and not included within the agricultural unit
• the extraction of any mineral from the land or from any disused railway embankment on the land
• removal from the land of any mineral from a mineral-working deposit.
• waste materials brought onto the land from elsewhere (excluding works for the erection, extension or alteration of a building or the creation of a hard surface).

Where development consists of the erection of a building or the significant extension or significant alteration of a building:

• the planning authority must be notified in advance so that it can decide whether its prior approval is required for the siting, design and external appearance of the building.

Class 18A permits the carrying out of irrigation, drainage or any other water management project for agricultural purposes, subject to the prior notification of the planning authority in the case of a building or significant extension of an existing building.

Class 19 permits, for the purposes of agriculture, the winning and working of any minerals reasonably necessary for agricultural purposes within the agricultural unit of which it forms part.

Class 19 does not permit:

• any excavation within 25 metres of the metalled portion of a trunk or classified road or a railway line
• movement of any mineral extracted to any place outside the land from which it was extracted, except to land which is part of the same agricultural unit and is used for the purposes of agriculture

Class 20 permits any works required in connection with the improvement or maintenance of watercourses or land drainage works.

Class 21 permits the winning and working of peat by any person for the domestic requirements of that person.

Key questions

The big issues under Part 6 are (a) the impact of the privileged PD status enjoyed by farm buildings and farm tracks, the former more a lowland issue, the latter more an upland one; and (b) the impact of PDR on the watery environment.

1. Does agricultural development still merit greater PDR than other business development?

Summary of recommendations

• Class 18 agricultural development should remain PD in principle.
• Class 18 agricultural PDR should however continue to be withdrawn in National Scenic Areas, and should additionally be withdrawn in the remaining parts of National Parks (see question 5 below).
• Class 18(1)(b) private ways should be removed to a new Class for private ways, and PDR for such ways restricted (see question 7 below)
• Class 18(1)(a) PDR for agricultural buildings should be withdrawn within the setting of Listed Buildings and Scheduled Monuments.
• User's guidance to the GPDO should refer to national and local planning guidance, which should advise on defining in practice the setting of Listed Buildings and Scheduled Monuments.

Justification

For the purposes of considering this question, we adopt the definition of agriculture in the principal planning Act (see below under question 3). We do not in any case think that the issue of what counts as agriculture is very material to deciding this question, because the main impacts are from large and not very beautiful buildings which are for purposes that are undoubtedly agricultural under that definition.

The arguments for retaining privileged PDR are: that such applications would be granted planning permission anyway; that delays in planning approval could have serious consequences for business dependent on the seasons; that the difficulties facing the industry require that regulatory burdens must be justified; and that prior notification provides a longstop.

The arguments against retaining privileged PDR run as follow. Agricultural development was originally granted privileged PDR to maximize output, and on the generally held understanding that agriculture was the guardian of the countryside. Neither premise now holds. Farms may need to change for agriculture to thrive economically, but the same applies to other businesses which now underpin the rural economy. The needs do not mitigate the impacts, which should be regulated, and the requirement to apply for planning permission is a burden proportionate to the risk of deregulation.

A potentially important consideration in deciding this question is the fate of prior notification (prior approval) ³³. If it was abolished, and agricultural PDR were retained, then the environmental risk of agricultural development would rise. We have proposed (section 9.3) abolishing across the GPDO prior notification for the purpose of giving the planning authority the opportunity to control siting, design and external appearance. The question is therefore what additional risk to the environment would arise from retaining agricultural PDR after abolishing prior notification.

We believe that little extra risk would arise, and that it can be controlled if the will is there to do so. Our reasons for this are as follow:

• The number of prior notifications of agricultural (and forestry) buildings is in the order of 900 a year, the bulk of them concentrated in just four local authority territories (Figure 7). These figures indicate that, taking Scotland as a whole, the risk posed by abolition is low.
• Some rural planning authority respondents signalled that they can achieve little effect through prior notification. We interpret this also to indicate that abolition would pose little extra risk in reality.
• Finally, risk could be reduced by limiting PDR in specified circumstances, such as in protected areas, through amendments to the GPDO (as we propose below), or through Article 4 Directions (the bulk of notifications are in just four authority territories).

We therefore set aside prior notification in deciding whether to retain agricultural PDR in principle. The arguments against retention appear to us to have greater logical force than those for withdrawal in principle. Nevertheless, we believe that the case for withdrawal in principle is not clear enough to justify overturning the status quo of 60 years, or to justify going against the spirit of the review of the Order, which is to regulate only when it is clearly justified. We therefore recommend retaining agricultural PDR in principle at this time.

Notwithstanding this, we recommend some specific withdrawals of PDR. Simplicity, clarity and playing safe argue for universally withdrawing agricultural PDR in all protected areas recognized by the Order. The principle of regulating only where it is clearly justified however argues for targeted withdrawal. PDR are already withdrawn in National Scenic Areas, and we advocate extending this to the remaining areas of National Parks (see question 5 below). We also recommend removing farm tracks to a new Class of private ways and restricting their PDR outwith protected areas (see question 7 below).

Another problem outwith National Scenic Areas and National Parks is the effect of large, modern, factory-produced buildings on the visual setting of traditional farm steadings. To address this we propose withdrawing agricultural PDR within the setting of a Listed Building or Scheduled Monument, wherever they are. We recognize the difficulty of defining a setting, and the unwelcome uncertainty that this introduces into the GPDO. Hence we recommend that user's guidance to the GPDO should refer to national and local design guidance on agricultural development, which should be explicitly address the issue of setting.

Finally, there is the issue of 'watery works' to do with drainage or water bodies (Classes 18A and 20), which we deal with under question 8 below.

2. Are the size limits on PDR for farm buildings appropriate to the present day?

Summary of recommendations

• The existing size limits for farm buildings should remain for the time being.

Justification

Responses argued variously for raising the limit, for not doing do so, and for lowering it.

Even if it is deemed appropriate to retain PDR for agricultural buildings, it may be possible to manage their adverse impacts by reducing the size limits (area and height). On the other hand, the continuing changes in agriculture may require larger buildings, and a policy of retaining PDR might respond to that by raising the size limits. It was also pointed out that the building warrant threshold of 280 sq m is lower than the planning threshold of 465 sq m, and that there might be a case for alignment. However, we are not persuaded that a change should be made to the GPDO in this one respect, if the two regimes are not to be aligned generally.

It appears to us that the existing size limits are not of themselves an issue with regard to flora, fauna or physiographical features. There is however an issue about the visual impact of the large buildings allowed by the limits, as discussed under question 1: we have recommended there how to address this issue.

3. Given agricultural change and diversification, is there a need for agriculture itself to be defined in the GPDO?

Summary of recommendations

• The definition of agriculture in the TCP(S)A 1997, s277(1) should be included in the Order. This should be done in Part I(2) Interpretation, to which interpretations at the end of Schedule 1 Part 6 should also be moved.

Justification

The farming sector considers there is no need to define agriculture in the Order, but others think it would be helpful. We take the view that, since agriculture is defined in the planning Acts, it is perverse not to include the definition in the Order. The definition of agriculture in the TCP(S)A 1997, s277(1) is:

"agriculture" includes horticulture, fruit growing, seed growing, dairy farming, the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land, meadow land, osier land, market gardens and nursery grounds, and the use of land for woodlands where that use is ancillary to the farming of land for other agricultural purposes, and "agricultural" shall be construed accordingly

This definition offers immediate clarity about whether some diversification activities on farms are agriculture. Karting, for example, is plainly not. The main definitional issues arising from the survey are equestrian development and hill tracks, and in these cases we make proposals about what should be classed as agriculture (see questions 4 and 7 below). We make no proposals about other activities that might fall within the above definition, such as pheasant rearing, because they did not arise in the survey.

4. Should equestrian development be treated as agriculture?

Summary of recommendations

• Equestrian development which is not for business purposes should not be defined as agriculture, and should enjoy no privileged PDR.
• When equestrian development is for business purposes, and the horses are kept as livestock, it should be defined as agriculture, and should in consequence enjoy the same PDR as other agricultural development.
• When equestrian development is for business purposes, and the horses are not kept as livestock, it should not be defined as agriculture.
• In our view, equestrian business development which is not agriculture should enjoy no privileged PDR.
• If the Executive however decides that equestrian business development which is not agriculture should be treated in the same way as agriculture, the development should enjoy the same PDR as agricultural development.

Justification

We break this question down as follows:

• What is equestrian development?
• Is it agriculture?
• If it is not agriculture, should it nevertheless enjoy equivalent PDR?
• If it is agriculture, should it enjoy the same PDR as agriculture?

What is equestrian development?

We were supplied with a useful classification of equestrian development as:

• riding school (stabling, arenas, ancillary facilities)
• livery stable or livery yard (accommodation for customers' horses, which may comprise only loose boxes but may also comprise facilities such as tack rooms, feed stores, arenas)
• equestrian centre (livery and teaching)
• trekking centre (usually farm based)
• stud farm (defined as 'breeding and rearing of horses or ponies or either for these purposes')
• racing yard (keeping and training thoroughbreds)
• equestrian B&B (accommodation for horse and rider)
• individual owner (property with stable, outbuildings, field)

Is it agriculture?

If it is for non-business purposes, no. If it is for business purposes, then only in the restricted circumstances set out below.

Non-business development

The argument was put to us that equestrian business development should be treated as agriculture for planning purposes, but that these rights should not necessarily be extended to private owners ( i.e. keeping horses for non-business reasons). No one argued that they should be. We see no reason to grant to equestrian development rights greater than those granted to agriculture, which are confined to the business of farming rather than extended to the farmer's dwelling or enjoyment of their property. Consequently, we recommend that equestrian development for non-business purposes should not enjoy PDR beyond any general rights under other Parts of the Order, such as those of householders under Part 1.

We recognise that this might unnecessarily restrict harmless development in more rural contexts, but it protects against what could be a considerable neighbour nuisance in a more developed context. It also aligns with the removal in Class 18(2)(a) of PDR from agricultural areas of less than 0.4ha, where it is likely that development density is higher and unlikely that the holding is the primary means by which the holder earns a living.

We therefore consider further only equestrian business development. We consider this to comprise all but the last of the categories listed above.

Business development

The phrases in the definition of agriculture in the TCP(S)A 1997, s277(1) relevant to equestrian business development are:

the breeding and keeping of livestock (including any creature kept for the production of food, wool, skins or fur, or for the purpose of its use in the farming of land), the use of land as grazing land

McAllister and McMaster (1999, s4.75) report that, in case law, agriculture has been held in a 1980 case to include use of the land for the grazing of horses, but in a 1962 case to exclude the breeding and training of horses for show-jumping- which would equate with 'stud farm' in the classification above.

In our view, the problem with the s277(1) definition is the phrase 'the use of the land as grazing land'. This allows grazing a horse to be interpreted as agriculture, even though the horse is kept neither as livestock nor 'for the purpose of its use in the farming of land'. Notwithstanding the 1980 legal ruling reported by McAllister and McMaster, in our view common sense rules that the definition in the Act has been carried over from a time when the possibility was not widely recognised that horses might be kept in numbers for neither reason. If this view is accepted, then equestrian development should not be agriculture nor enjoy agricultural PDR, merely by virtue of 'the use of land as grazing land'.

We therefore recommend:

• adding to the Interpretation of Part 6 of the GPDO the statutory definition of agriculture from s277(1) of the TCP(S)A1997;
• together with an interpretation that equestrian business development is not agriculture merely by virtue of 'the use of land as grazing land', but requires that a horse be kept as livestock as defined in s277(1), recognising that such circumstances are now few;
• we incidentally recommend, for clarity, moving all such interpretation to a comprehensive glossary at Part I(2) Interpretation of the Order.

When it qualifies as agricultural, should it enjoy the same PDR as other agricultural development?

In our view, the answer to this question has by definition to be yes. We therefore recommend that those cases which qualify as agricultural for planning purposes should enjoy the same PDR as other agricultural development.

A more specific question is whether, if agricultural PDR were retained as we have proposed, the 0.4ha agricultural area threshold should apply to equestrian business development which is agriculture. We recognise that it may be possible to run some equestrian businesses on less than 0.4ha. Nevertheless, we consider that it would be unworkable to set a different limit for equestrian development, especially given that such a business might be part of a wider farming enterprise. We therefore recommend that the 0.4ha threshold apply to equestrian business development which qualifies as agricultural.

If it is a business development which does not qualify as agricultural, should it nevertheless enjoy equivalent PDR?

We have argued above that non-business equestrian development, and the majority of equestrian business development, should not qualify as agriculture. One might nevertheless argue that equestrian business development should enjoy PDR in the same way as agriculture, on the ground that it is held in the present day context to have a social, economic and environmental significance equivalent to that of agriculture. A case for this was made to us, claiming that 100,000 horses in Scotland generate £200m of economic activity, complement farming in maintaining the rural environment, and provide a diversification option for farm businesses. The case against it made to us is that equestrian development has nothing to do with food production or the maintenance of traditional landscapes.

We have already argued above that these days equestrian development rarely contributes to agricultural production. It is probably true that it also seldom contributes to maintaining traditional landscapes; but that is a less compelling test outside a National Park, National Scenic Area or Environmentally Sensitive Area. Our problem with treating it as equivalent to agriculture is rather that there are other land-based activities that might also claim an equivalent contribution to rural life, and that we see no reason why it should be singled out for special privileges. Moreover, much equestrian activity is in the urban fringe anyway.

We therefore recommend that no privileged status should be accorded to equestrian business development which does not qualify as agricultural.

5. Should the restriction of PDR in National Scenic Areas be extended to other parts of National Parks?

Summary of recommendations

• The restriction of PDR in National Scenic Areas should be extended to other parts of National Parks.

Justification

It is arguable that not all parts of a National Park are of equal scenic quality, and that there is therefore no intrinsic reason why National Scenic Area restrictions should apply to their other parts. We however favour the opposing argument, that a National Park is designated to recognize it as an integrated natural heritage unit of national value, which should be managed as a unit. It appears to us self-evident that the aspiration should be to achieve the highest standard of design in all parts of it, rather than to differentiate first and second class parts through the GPDO (indeed, to this end and to avoid confusion in the public's mind, it has been proposed that the National Scenic Area designation be abolished within National Parks). Furthermore, the National Scenic Area restrictions are not such as to create an unreasonable burden on landholders and developers.

We deal with the special case of hill tracks under question 7 below.

6. Is the concern about uses of waste, which are exempt activity under SEPA regulations, a planning issue; if so, is it adequately controlled under the GPDO ( e.g. import of waste to form a track)?

Summary of recommendations

• No specific change should be made to the GPDO (new permitted development for operations ancillary to waste management are proposed in section 7.9).

Justification

The majority view among the few responses on the import of waste material for work on private ways under Classes 18(1)b and 22(1)b is that what matters is the impact of the work in which the material is used, not whether the material is waste or new, or where it comes from. It was however remarked that 'on occasion the Order has been interpreted to enable the disposal of very large quantities of waste without proper control', and that there is scope to review these Classes to impose more rigorous control. Yet SEPA regards the formation of tracks by importation of waste as an exempt activity in terms of its regulatory controls.

We believe that the impact of work using imported waste will largely be addressed by our recommendations concerning the limit of PDR for private ways (see question 7 below). We see concern about unregulated movement of large amounts of waste as applying to a wider context than private vehicular ways alone, and as a waste regulation matter which should be addressed through abolishing its status as an exempt activity under the waste management regulations, rather than by modifying the Order.

7. Should the formation, alteration or improvement of any private way require a planning application, regardless of its purpose and location (except, perhaps, when part of an approved forestry scheme)?

As explained below, we pull together here several other Parts of the GPDO which also currently deal with private ways.

Summary of recommendations

• Create a new Class of private ways, which would replace Classes 8(1), 18(1)(b), 22(1)(b) and 22(1)(c), and 27(1). Explicitly exclude from Class 18(1)(c) works for the formation, alteration or improvement of any private way.
• Clarify that the term private way describes a structure which is intentionally formed for the purpose of passage along it, as distinct from a route of repeated travel across the land where nothing has been formed for that purpose.
• Exclude Parts 11, 12, 13 and 20 from the scope of the new private ways Class.
• Distinguish in the new Class between vehicular ways and non-vehicular ways (footpaths, bridleways and cycle ways), by creating separate sub-Classes for vehicular and non-vehicular private ways.
• The term vehicular should exclude ways which are not designed for use by motor vehicles, even though some may be capable of use by some motor vehicles.
• The formation of non-vehicular ways should be PD.
• The GPDO should not consider the purpose for which a private way is formed.
• Within protected areas, PDR should be universally withdrawn from the formation of private vehicular ways.
• Outwith protected areas:

• The proposed new sub-Class of private vehicular way should:

• Relevant planning authorities should hold stocks of good practice guidance ( e.g. by SNH) on the formation and repair of hill tracks, and issue it to anyone enquiring.

Justification

The chief concern is about hill tracks. It is worth noting at the outset that farm and forestry tracks do not require prior notification, in contrast to farm and forestry buildings. They did require it in the GPDO as originally published in 1992 (the version on the HMSO legislation website, to which the Executive website links), but this was almost immediately deleted by SI 1992 No. 1078.

Concerns raised by respondents about the existing provisions of the GPDO for private ways ³⁴ can be summarised as:

1. Outwith National Scenic Areas, where a Direction not cited in the GPDO removes PDR³⁵, the spread of:
2. 1. Class 18(1)(b) tracks for agricultural purposes, especially on the open hill, with impacts on wild land character, landscape, ecology, hydrology and biodiversity;
   2. Class 22(1)(b) light forestry tracks allowing access to ATVs e.g. to extract deer, and 'overwriting' of footpaths by such tracks;
   3. Class 22(1)(b) heavy forestry tracks for timber extraction as the rate of felling rises with maturing of the forest estate.
2. Use of tracks enjoying PDR for agricultural or forestry purposes for other purposes, especially field sports.
3. Upgrading from something which is innocuous (such as a stalker's path) to something which potentially has a significant impact (such as driveable track to service stalking), particularly under Class 27 PDR for repair of private roads and ways.
4. Incremental widening of ways.
5. Damage to ground outwith the boundary of a way as result of repair work.
6. Use of Class 8 PDR for formation of an access to a private way to create what is in reality itself a private way.
7. Off-road vehicle activity, including under Class 15 temporary use of land for any purpose, which damages ground, intrudes on the character of wild land or injures others' enjoyment of the countryside.
8. In addressing such issues, distinguishing between areas designated for their natural heritage value and other areas is not necessarily helpful.

The above list, along with positive survey responses to our cross-cutting question about whether the GPDO should pull together all aspects of private ways into a single location, leads us to recommend creating a new Class of private ways, which would replace Classes 8, 18(1)(b), 22(1)(b), and 27. As consequent tidying up, and for clarification, Class 18(1)(c) should explicitly exclude works for the formation, alteration or improvement of any private way, other than the sourcing of materials. It does not appear to us appropriate to capture within the new Class the sourcing of materials, as distinct from forming ways themselves. It follows that, in Part 7 forestry, Class 22(1)(c), which is exclusively about sourcing materials, should remain where it is.

With respect to the concern about de facto creation of a private way by repeatedly driving a route where no track exists, we cannot see how the GPDO can be of help, since driving a vehicle across land is not development under the Planning Acts, nor a Use Class under the Use Classes Order. It can and has been addressed in specific instances through management agreements under the Wildlife or Countryside Acts, and by making bylaws (for example, to control use of motor vehicles on coastal dunes), and we recommend this approach to controlling the problem.

We therefore recommend that the GPDO is amended to clarify that the term private way describes a structure which is deliberately formed for the purpose of passage along it, as distinct from a route of repeated travel across the land where nothing has been formed for that purpose.

There are Classes other than those listed above which more or less explicitly cover private ways:

• In most Classes of Part 12 development by local authorities and Part 13 development by statutory undertakers, the phrase 'any other development in, on, over or under the land' appears capable of interpretation as including the formation of vehicular ways.
• Part 11 Class 29 development under local or private Acts or Orders also permits formation of access to a road (with prior approval).
• Part 20 Class 67 development by telecommunication code systems operators specifically grants PDR to formation of an access track up to 50m long.

We nevertheless recommend excluding Parts 11, 12, 13 and 20 from the scope of the new Class, pending separate resolution of the strategic question of whether the status of the developer should influence PDR. Here we only note that the limited number of agents covered by Parts 11, 12 and 13 facilitates an approach to securing control and good practice based on protocols agreed with the planning authority, which would be infeasible in the cases of other developers.

Non-vehicular ways

At present the GPDO does not distinguish between vehicular and non-vehicular ways: the definition of private way is a road or footpath which is not maintainable at the public expense. This lack of distinction protects, through the absence of PDR for ways which are not made for agricultural or forestry purposes or by statutory undertakers, against the possibility of damage arising from the formation of a footpath, bridleway or cycleway, which can be considerable structures. It also protects in law, though sometimes not in practice, against 'status creep' - crossing the line between non-vehicular and vehicular by increments.

Nevertheless the prevailing view among respondents who raised the matter at all is that non-vehicular ways should enjoy PDR. With regard to the focus of concern about private ways - the open hills - we agree with one respondent that 'hill paths are normally constructed with public or charitable funding for the use of the general public, to control erosion rather than facilitate access and are normally works of repair or restoration, except occasionally as a replacement of a worn path on a more sustainable line'. In short, non-vehicular ways are so seldom likely to cause problems that withdrawing PDR from them would unnecessarily curtail development rights, which is against the spirit of the review.

We therefore recommend:

• that a distinction be drawn in the new Class between vehicular ways and non-vehicular ways (footpaths, bridleways and cycleways);
• that this be done by creating separate sub-Classes for vehicular and non-vehicular private ways;
• that the term vehicular should exclude ways which are not designed for use by motor vehicles, even though some may be capable of use by some motor vehicles; and
• that the formation of non-vehicular ways be PD.

Purposes of private ways

The GPDO nowhere refers to field sports, and the issue repeatedly arises of whether field sports count as agriculture, such that hill tracks for field sports are PD under Class 18 agricultural development. The GPDO does not define agriculture, and its definition of agricultural purposes sheds no light on the question. We understand that it is widely considered that for planning purposes field sports do not count as agriculture. Yet we have written evidence of a landowner being legally advised that a track for sporting use is PD, and of this being endorsed by the planning authority. In any case, the point is repeatedly made that a track originally intended for one use may then be employed for another, and that a distinction is not enforceable. The point has also been made that the concern of the GPDO should be with impacts, not purposes.

We therefore recommend that the GPDO should not consider the purpose for which a private way is formed. This should be the ultimate goal, but we recognise that it may have to be postponed for reasons explained below.

Formation of private vehicular ways

As indicated above, in National Scenic Areas forming a private vehicular way for any purpose already requires a planning application. It is however an anomaly that this withdrawal of PDR is not incorporated into the Order, and we recommend that it be so, to tidy matters up and avoid any confusion.

The question is then whether such withdrawal of PDR should be extended to other types of area, and if so to what extent. We certainly agree with the specific case made to us for extending it to National Parks in their entireties, on the ground that these are designated as coherent areas of national heritage value. This will eliminate the inconsistency of treatment between those parts of them which are National Scenic Areas and those which are not. It will also obviate the practical problem of how to deal with a track which winds in and out of a National Scenic Area. This appears to us to be a reasonable balance between protection of a national asset and that of individual development rights, bearing in mind that withdrawing PDR is not a ban on development.

We extend this argument also to other nationally protected areas ³⁶, the various values of which are also vulnerable to damage by uncontrolled track building. It may be argued that there are back-up regulations which would allow planning control to be relaxed. In particular, SSSIs enjoy protection under the Nature Conservation (Scotland) Act 2004, and European sites do so under the Habitats Regulations. But these regimes offer protection only against damage to the features for which the sites are designated and not to other aspects of potential interest to planning. The EIA Regulations and the Controlled Activities Regulations may also seem to provide safeguards. Again, however, this would be misconceived, since the EIA regime is intended to catch only the more significant risks, and would by its nature be a burdensome means of catching less significant ones; and the Controlled Activities Regulations cover only ecological, hydrological and geomorphological impacts, not landscape or wild land impacts.

We considered but reject the option of granting PDR but imposing a prior notification requirement. We recommend elsewhere in this report abolishing prior notification for the control of siting, design and external appearance, and we see no reason to override this in the present case. We therefore recommend that, within protected areas, PDR be universally withdrawn from the formation of private vehicular ways.

There is also considerable pressure to extend withdrawal of PDR beyond protected areas. It is argued that a blanket grant of PDR may result in unacceptable damage to the natural heritage outwith protected areas. We argued above that other controls do not provide sufficient back-up to relax planning control even in protected areas: it follows that they certainly do not outwith protected areas, since by definition fewer other controls apply there.

Options outwith protected areas include:

• Universally withdraw PDR for private vehicular ways. The objection is that the focus of concern is open hill country, and that this option would unnecessarily increase the regulatory burden elsewhere, where it would have little protective benefit. On the other hand, it has been argued that there is little demand for new tracks in lower lying farmland, such that the burden would be largely illusory.
• Grant universal PDR but introduce prior notification as a safeguard. We however reject prior notification for the reasons given above.
• Withdraw PDR above an altitudinal threshold. However, experience with the original 1980 National Scenic Area Direction showed this to be impractical because tracks dip over and under an altitude threshold.
• Grant PDR up to maximum length of track, as in Class 67. But what would be an appropriate length? A 50m track in the wrong place might do more damage than a 5km one in another place. We also think that a length criterion would be difficult to apply or enforce, given issues of track networks joining up, incremental extensions, and incremental improvements.
• Withdraw PDR only in specified landscape types. SNH suggests using the term 'uncultivated land and semi-natural areas', already in use in the EIA Regulations of that name, or a substitute term such as 'open landscapes with semi-natural vegetation'. This approach has the merit of restricting control to only those parts of the country where the chief concern lies, which aligns with the spirit of this review of the Order. We fear, however, that it would be difficult to operate, and that decisions would be open to challenge. It would run counter to the Order's ethos of precision, and to the review's pursuit of clarity. We conclude that this approach would be workable only if it were possible to map these areas relatively easily, for example based on SNH's Natural Heritage Zones. The Executive should explore the feasibility of this with SNH.

The reasoning above leads us to believe that, pending the outcome of such an investigation, the only realistic alternatives outwith protected areas are universal grant or universal withdrawal of PDR. In the event of the former, authorities would still have recourse to seeking an Article 4 Direction should circumstances warrant it. We are conscious that it would be undesirable to grant universal PDR, only to claw back control in certain landscapes a short time later. Hence we believe that the best course of action is meantime to maintain the status quo, excepting to amend the GPDO to clarify that tracks for purposes other than agriculture or forestry are not PD, and that field sports do not qualify as agriculture.

We recognise that this runs counter to our recommendation above that the GPDO should ultimately not consider the purposes for which a private way is formed. But we do not see how this goal can practically be implemented without mapping exclusion areas. Should the mapping of exclusion areas not take place, then the status quo should continue but with explicit exclusion of fields sports from the meaning of agriculture. Should mapping prove worthwhile, PDR should be then withdrawn in exclusion areas.

We therefore recommend, with respect to land outwith protected areas:

• that the feasibility be investigated of mapping land considered to be most at risk, i.e. open landscapes with semi-natural vegetation;
• that meantime the status quo is retained, except to clarify that tracks for purposes other than agriculture or forestry are not PD and therefore require a planning application, and that field sports do not qualify as agriculture;
• that authorities be reminded that they have recourse to an Article 4 Direction where it appears to them justified;
• that, if open landscapes with semi-natural vegetation are mapped, PDR are then withdrawn from all private vehicular ways within them.

Repair, maintenance and improvement of private vehicular ways

Class 27 repairs to private roads and private ways grants PDR for 'the carrying out on land within the boundaries of a private road or private way of works required for the maintenance or improvement of the road or way.' We consider that confusion is introduced by bundling together the terms maintenance and improvement under the heading of repair. It is clear to us that, in plain English, these three terms mean different things:

• maintenance means keeping the way in its original condition, through preemptive work to stop it deteriorating;
• repair means restoring the way to its original condition through putting right deterioration;
• improvement means work which upgrades the way beyond its original status.

We listed above three concerns arising from Class 27: (a) upgrading from a non-vehicular to a vehicular way without applying for planning permission; (b) widening; and (c) damage to ground outwith the boundaries of a way as a result of operations directed at ground within the existing boundaries. Taking these in turn:

1. Our recommendation above that the GPDO distinguishes between non-vehicular and vehicular ways should obviate the problem of upgrading non-vehicular ways to vehicular ones.
2. The words 'within the boundaries' of Class 27 already clearly exclude widening. The problem is enforcement, since widening obliterates former boundaries. The only way we see of addressing this through the GPDO itself is to make the point more forcibly, by inserting an explicit general limitation that work which widens the way beyond its existing boundaries is not PD and requires a planning application.
3. It would be unworkable and unreasonable to prevent operations outwith the boundaries to maintain or repair the way within its boundaries; there should instead be a general condition that any incidental or consequential damage to adjacent ground must be made good.

We therefore recommend that the proposed new sub-Class of private vehicular way:

• distinguish between maintenance, repair and improvement (possibly replacing the last by the term upgrading);
• make it clear that maintenance and repair are PD, whereas improvement from non-vehicular to vehicular way requires a planning application;
• make it clear that work which widens the way beyond its existing boundaries requires a planning application;
• impose a general condition that any incidental or consequential damage to adjacent ground must be made good.

Good practice guidance

In our 2002 report to SNH on the subject, we noted that the issue with hill tracks is often not where they are built but how. SNH has issued good practice guidance on the construction and repair of such tracks, and we recommend that, irrespective of what happens to the Order, relevant planning authorities should hold stocks of this and any subsequent guidance, and issue it to anyone enquiring about whether they need to apply for planning permission to form or carry out works to such tracks.

Conclusion

We acknowledge that our recommendations for the formation and improvement of private vehicular ways would somewhat tighten controls beyond the existing regime. We recognize that they are contrary to the spirit of both the review at large and our recommendation to retain agricultural PDR in principle. We justify our recommendations on private ways by:

• the loudness of calls from several quarters for wholesale withdrawal of PDR from hill tracks;
• the difficulties of distinguishing uses of private vehicular ways;
• our contention that it is not an unreasonable burden to require a planning application to form a private vehicular way where there is a substantial risk to the environment;
• the limited number of such applications that might be expected relative to those for other forms of development.

8. How could Classes 18A and 20 be amended to dovetail with other regulatory regimes, so as to prevent damage arising from operations connected with watercourse and drainage works? Should such works be treated in a separate Part from agriculture?

Summary of recommendations

• Leave Class 18A unchanged, enjoying agriculture PDR.
• Reword Class 20 to exclude works for agricultural purposes, and move it from Part 6.
• Reword Class 19 to exclude works affecting water bodies.
• Refer Class 20 works to SEPA and set up an administrative agreement that SEPA consults the planning authority on any planning interest in such works
• Issue user guidance for works involving water bodies that cut across consent regimes.

Justification

The problem here is the interface between land and water. The issues are:

• confusion resulting from the similarity between the two Classes;
• confusion resulting from the presence of Class 20 in Part 6 although it does not refer to agriculture;
• the range of works allowed by these Classes and their resulting impacts on a range of natural heritage values;
• the relationship with other consent regimes.

The coexistence of two such similarly worded Classes within the same Part is confusing. Class 18A allows irrigation or drainage or any other water management project for agricultural purposes, while Class 20 allows 'any works in connection with the improvement or maintenance of watercourses or land drainage works'. Several respondents commented that Class 20 is interpreted by landholders to allow a range of works not for agricultural purposes, and should therefore be removed from Part 6. We agree that, as a minimum, Class 20 should be removed from Part 6, and reworded to exclude works for agricultural purposes. One respondent also commented that Class 19 can be interpreted as allowing extraction of minerals from a water course, assuming that the definition of land includes water bodies. We propose removing that risk by inserting a clause in Class 19 excluding works affecting water bodies. Neither action appears to us to carry risk.

Respondents commented that Class 20 is too open and can include major rivers; is often abused to justify landfill operations (!); and is used to allow flood prevention works and fishing improvements. Our 2002 report to SNH listed and gave examples of impacts on the natural heritage. It was also commented that Classes 18A, 19 and 20 all allow ground disturbance with the potential to damage or destroy archaeological remains, including Scheduled Monuments. One option for dealing with this is to remove PDR for all such works, with the implication that they may still be development, and require a planning application. However, the problem is that landholders (and planning authorities) are likely to be unsure what part of such works does constitute development. This is exacerbated by the overlap of Class 20 with other regimes for salmonid fisheries, land drainage and the Controlled Activities Regulations. It might therefore be better to take Class 20 ( i.e. non-agricultural) works out of the planning regime, leaving their regulation to these other watery regimes. We do not think this can be done by excluding them from the legal definition of development in the planning Acts, because that definition certainly encompasses some part of such works. It would have to be done by inserting into the GPDO a referral of such works to the other relevant regimes.

Unfortunately, it appears that this might leave a gap as those regimes now stand, because the Controlled Activities Regulations address ecology and hydrology, but not amenity or landscape. We propose that this is best dealt with by emulating the arrangements for forestry. SEPA's lead responsibility for water bodies under the Water Framework Directive should be recognised, and the issue of dealing with interests outwith its remit should be addressed by administrative protocols to consult with other authorities, including the planning authority, where it appears to SEPA that there may be issues that fall within their remits.

Thus a pragmatic way forward with this intractable problem might be:

• to leave Class 18A unchanged, enjoying agricultural PDR;
• to move Class 20 from Part 6;
• to modify Class 20 to exclude works for agricultural purposes;
• to refer Class 20 works to SEPA;
• to set up an administrative agreement that SEPA consults the planning authority on any planning interest in such works;
• to issue user guidance to watery works.

9. What should be the development status of polytunnels?

Summary of recommendations

• Further work is required on polytunnels. Meantime, they should be treated as agricultural buildings. It may be helpful to refer to them explicitly in Class 18, but this will require a workable definition.

Justification

We obtained limited responses and these were polarized. Natural heritage interests have expressed concern about the visual impact of polytunnels on the landscape. Given their temporary nature, there has been some uncertainty as to whether they fall within the definition of a "building".

This is a potentially complex subject about which we have obtained limited information. However, at the time of writing, we are aware of an English court case ³⁷ which endorsed a Planning Inspector's view that they did comprise a building operation, were not permitted development, and therefore upheld an enforcement notice requiring their removal. In the circumstances, we therefore recommend further work and a conservative approach in the meantime. The court case cited appears to have resolved the uncertainty as to whether polytunnels are temporary or permanent structures, given that some now have permanent footings.

Since horticulture and fruit growing are explicitly agriculture under TCP(S)A 1997, s277(1), and since polytunnels are used for those purposes, they should be treated as agricultural development under Class 18. They should thus enjoy the same PDR as agricultural buildings, which would however be withdrawn in the same way as we propose for agriculture buildings, within the setting of a Listed Building or Scheduled Monument , in National Scenic Areas and in National Parks.

It may be helpful to refer to them explicitly in Class 18, and to insert a definition in the proposed expanded glossary of the Order.

7.2 FORESTRY BUILDINGS AND OPERATIONS (PART 7)

Current PDR

Class 22 permits works and operations on forestry land for:

• erecting, extending or altering a building
• forming, altering or maintaining private ways, and obtaining materials for such purposes on associated land

And other (unspecified) operations, but not including engineering or mining operations.

Class 22 does not permit:

• provision or alteration of a dwelling
• any building or works higher than 3 metres within 3 kilometres of the perimeter of an aerodrome
• any part of the development within 25 metres of the metalled portion of a trunk or classified road.

Where development consists of the erection of a building or the significant extension or significant alteration of a building:

• advance notification of the planning authority to determine whether its prior approval will be required for the siting, design and external appearance of the building.

Key questions

The following questions relevant to Part 7 were posed in the Next Steps (follow-up round) of the survey. Of these, only question 1 is exclusive to Part 7, and is answered here. The others apply across the Order, or are common to Part 6 agriculture. We indicate below where each question is answered.

The big issue in forestry development is tracks, which we deal with under Part 6 (question 7). The issues with other forestry development are relatively minor.

1. Should forestry PDR be extended to cover at least some aspects of forest recreation?

See below.

2. Should the restriction of PDR in National Scenic Areas be extended to other parts of National Parks?

See section on Part 6, question 5.

3. Is the concern about uses of waste, which are exempt activity under SEPA regulations, a planning issue; if so, is it adequately controlled under the GPDO ( e.g. import of waste to form a track)?

See section on Part 6, question 5.

4. Should the prior approval procedure be abolished?

See section on Part 6, question 1; and below.

5 . Should a separate Class be created dealing with private ways, regardless of their purposes?

See section on Part 6, question 7.

6. Should the formation of any private way require a planning application, regardless of its purpose and location (except, perhaps, when part of an approved forestry scheme)?

See section on Part 6, question 7.

7. Should the alteration or improvement of any private way require a planning application, regardless of its purpose and location (except, perhaps, when part of an approved forestry scheme)?

See section on Part 6, question 7.

Summary of recommendations

• Minor works for forest recreation development should be PD. These should include signage, signposting and waymarking, and ancillary buildings up to limits to be determined.
• These limits should be the subject of discussion with the Forestry Commission Scotland, but should as a default align with those of statutory undertakers for erecting ancillary buildings. They should be set to exclude larger recreational buildings such as toilet blocks and visitor centres.
• Paths and tracks, including mountain biking trails, should fall under the proposed new Class of private ways and the regulations we propose for it.

Justification

We did not ask whether the privileged PD status of forestry development in principle should be removed. One respondent to the first round questionnaire did call for its removal, and one to the Next Steps follow-up commented that the question should have been posed. We interpret this as a low level of demand, and in any case the focus was on forestry tracks, which we have addressed.

We propose in section 9.3 the deletion from the GPDO of prior notification for reasons of siting, design or external appearance. We perceive no significant risk arising from this in the case of forestry buildings. Such buildings raise few complaints relative to farm buildings, no doubt because they are fewer and are often hidden amongst trees.

Forest recreation is a burgeoning activity. The question is whether and what forest recreation falls within the definition of forestry. Since we have argued for retention in principle of PDR for forestry development, any recreational development qualifying as forestry development would in principle be PD. Forestry Commission Scotland interprets "many aspects of forest recreation, such as tracks, paths, small ancillary buildings and play areas, to be an integral part of forestry activity and therefore currently covered by PDR outwith National Scenic Areas [where PDR are removed]. For larger scale projects, such as toilet blocks and visitor centres, it is accepted that FCS and private foresters will follow current planning regulations, including the submission of relevant plans to the planning authorities, and that these developments should not be covered by PDRs."

We do not necessarily accept that ways formed for recreation, play areas etc. are forestry.

Unfortunately, there is no statutory definition of forestry, and a review of case law on the matter is beyond the scope of this project. However, we can take paths and tracks out of the equation, since we have proposed bringing these together under a new Class of private ways, which we have addressed under Part 6. This would also cover purpose-built mountain bike trails. The difficult issue of multiple uses of tracks is thereby avoided, since we have proposed that the new Class is blind to the use to which a private way is put.

For pragmatic reasons, we propose that signage, signposting and waymarking should be treated as PD, since we do not see that as posing a significant risk in a woodland environment.

This leaves the matter of buildings, and what should be the PD limits for these. Class 22 sets no size limits on forestry buildings but, since FCS implicitly recognizes that larger recreational buildings are not an integral part of forestry activity, we do not think that degree of freedom should apply. We propose that PD limits on buildings be the subject of further discussion between the Executive and the Forestry Commission Scotland, but that as a default they should align with the PD limits for ancillary buildings erected by statutory undertakers.

7.3 INDUSTRIAL AND WAREHOUSE DEVELOPMENT (PART 8)

Class 23 permits the extension or alteration of an industrial building or a warehouse (including any ancillary social, recreational or welfare purpose).

Class 23 does not permit:

• a building extended or altered for purposes other than those of the undertaking concerned
• the use of an extended or altered industrial building for a purpose other than an industrial process or the provision of employee facilities
• the use of an extended or altered warehouse for a purpose other than for storage or distribution or for the provision of employee facilities
• the height of the building as extended or altered exceeding the height of the original building
• exceeding the floor area of the original building by more than 25% or 1,000 square metres, whichever is the greater
• a material change to the external appearance of a building extended or altered
• any part of the development within 5 metres of any boundary of the curtilage of the premises
• a reduction in the space available for the parking or turning of vehicles
• its use for related employee facilities between 7 pm and 6.30 am
• its use for related employee facilities if a notifiable quantity of a hazardous substance is present at the site
• any ancillary social, recreational or welfare purpose in a building any part of which is used for a hazardous activity.

Additionally:

Any additional building within the curtilage of another building, and used in connection with it, is to be treated as the extension of that building, and not to be treated as an original building.

Where two or more original buildings are within the same curtilage and are used for the same purpose, they are to be treated as a single original building in making any measurement.

Class 24 permits development carried out on industrial land for the purposes of an industrial process consisting of:

• the installation of additional or replacement plant or machinery
• the provision, rearrangement or replacement of a sewer, main, pipe, cable or other apparatus
• the provision, rearrangement or replacement of a private way, private railway, siding or conveyor

Class 24 does not permit:

• development that would materially affect the external appearance of the premises of the undertaking concerned
• any plant or machinery higher than 15 metres above ground level or the height of anything replaced, whichever is the greater.

Class 25 permits the creation of a hard surface within the curtilage of an industrial building or warehouse to be used for the purpose of the undertaking concerned.

Class 26 permits the deposit of waste material resulting from an industrial process on any land comprised in a site which was used for that purpose on 1st July 1948, whether or not the superficial area or the height of the deposit is extended as a result,

Class 26 does not permit:

• deposit of any material resulting from the winning and working of minerals

Key questions

1. What are the issues around the definition of 'materially affect appearance' and how might these be resolved?

The term appears to create uncertainty and debate for both site owners and local authorities.

• Delete 'materially affect appearance' from both class 23(2)(a) and class 24(2)(a)

Justification

The GPDO already includes various restrictions to PDR in these classes (based on height, distance from boundary etc). The additional limitation on things which materially affect appearance appears to be poorly understood and little used. In addition, it appears to be in conflict with things which are expressly permitted within the GPDO - e.g. extensions, and which necessarily have a material effect on appearance. Finally, there is a danger that this limitation might discourage routine maintenance or upgrading of a building/site.

There appears to be very little danger in removing this limitation from this part of the order, and it would have the advantage of improving clarity for both site owners and local authorities.

2. How should the issue of original building size be dealt with? Could the GPDO use an alternative approach to limiting PDR?

Defining the original building appears to be problematic in some situations, particularly where buildings have attached plant/machinery.

• References to original building size should be deleted. Restrictions should be applied to site coverage (max 50% of site area to be occupied by buildings, plant or machinery)

Justification

Although reference to original building appears to offer clarity and certainty, in practice this is not always the case.

The GPDO already limits PDR for extensions based on height, distance from the site boundary and impact on parking/turning space. By changing the restriction on extension size (25% increase in floor area or 1000sqm whichever is greater) from that relating to original building to one based on current buildings and maximum curtilage development would increase PDR. It might also create the situation in which buildings are incrementally extended within PD limits, but up to a maximum of 50% of the total site, including the footprint of all buildings, plant and machinery.

The risk of this happening is small, and in sensitive settings may be compensated for by some reduction in PDR for industrial buildings close to residential property (see Q4).

3. Where is there scope to relax PDR (height)?

• The height of the building as extended or altered shall not be higher than the highest point of current buildings on the same site.

Justification

The current absolute limit on increases in height is overcautious and is determined by the height of the "original" building, which is often problematic to establish. Where there is only a modest increase in height proposed (for both buildings and plant/machinery) this is unlikely to have any significant impacts on neighbours or wider amenity which requires scrutiny through the planning system.

4. How should neighbour impacts be dealt with (in mixed use areas)?

• A new limitation should be placed on PDR for part 8, where buildings are within 25m of a residential property. This would affect building extensions and the installation of additional plant/machinery (classes 23 & 24) and require a planning application in these circumstances. This should exclude replacement plant or machinery.

Justification

There is a need to provide some protection to residential properties which are close to industrial uses. At the moment, the GPDO does not recognise any potential conflict between industrial and residential uses, and no protection is afforded to residential neighbours.

Introducing a modest distance criterion which would restrict PDR close to residential properties would help to overcome this difficulty. By restricting the distance to 25m, this would limit the number of industrial units affected by the change and protect the amenity of the closest residential neighbours.

The objective of this recommendation is to restrict those elements of PDR which have the potential to reduce the amenity of residential neighbours. As a result, replacement plant/machinery should NOT be restricted in this way (since their use is already established on the site).

5. Could PDR be extended to cover ancillary matters/minor issues? (if so, should there be any exceptions?)

• PDR should be extended to ancillary uses except in the case of retail functions.

Justification

The main argument for this is to resolve an anomalous situation in which ancillary uses have no established PDR, but principal uses do.

The main exception should be retail functions. In planning terms these are significantly different from other ancillary uses (office/storage etc) as they can have traffic impacts and may affect the viability of local retailers. There is some evidence that there is a trend towards retail counters/factory shops at/within warehouse businesses, and a need for clarity about whether these are a legitimate part of a warehouse or industrial use. It is proposed that all retail functions are excluded from PDR in this class. This will establish clarity and allow scrutiny of retail proposals by the local planning authority through the planning process. However, there will remain the issue of whether there is a material change of use.

6. Which other definitions require clarification? ( e.g. waste deposits; plant & machinery)

• The definition of 'industrial building' and 'warehouse' should exclude any retail activity.

The term plant and machinery should also be defined within the order. In particular it should clarify that this excludes lighting, air conditioning units and boilers/heating systems.

Justification

As recommended elsewhere, it is important that the GPDO is clear and easy to understand. Providing new and updated definitions of key terms will help to achieve this.

Although some practitioners may feel that the term plant and machinery is well understood, there is still merit in providing a clear definition of the term within the order. As CCTV is covered by another part of the order, it is clear that this should not be covered within the term plant/machinery. However, it is less clear whether air-conditioning units, heating/boiler systems and external lighting should be included within the term.

It is proposed that these are excluded from the definition in order to achieve parity with other uses/parts of the GPDO (i.e to avoid creating specific PDR for these technologies under part 8 where they do not enjoy PDR within other classes).

7. Additional recommendations

• Class 26 should be removed from the order, thereby requiring operators to apply for planning permission for the deposit on-site of imported waste.

Justification

Class 26 permits the importation and deposit of waste on an industrial site. This is substantively distinct from permitted development for waste tipping at a mine, where waste is derived from on-site operations. The audit of the GPDO in relation to government policies indicates a need to minimize waste transport and importation. In these circumstances it is reasonable to delete the rights provided under Class 26.

By granting PDR for waste matters, this does little to encourage good environmental practice, risks ground contamination and works against wider policy on sustainable development and environmental protection. Since one of the objectives of planning reform in Scotland is to promote sustainable development, it is appropriate to withdraw PDR for waste deposition.

7.4 REPAIRS TO PRIVATE ROADS AND PRIVATE WAYS (PART 9)

We address this aspect of the GPDO as part of the discussion, analysis and recommendations for agricultural buildings and operations (Part 7 of the Order) on pages 74-75.

7.5 DEVELOPMENT BY STATUTORY UNDERTAKERS (PART 13)

Part 13 permits a wide range of minor works by bodies carrying out functions under statutory powers. Although not defined in the GPDO, s214 of the TCP(S)A 1997 defines "statutory undertaker" as meaning "persons authorized by any enactment to carry on any railway, light railway, tramway, road transport, water transport, canal, inland navigation, dock, harbour, pier or lighthouse undertaking or any undertaking for the supply of hydraulic power or water and a relevant airport operator". Article 2(1) of the GPDO adds to this list a universal services provider (within the meaning of the Postal Services Act 2000), the Civil Aviation Authority, public gas transporters within the meaning of s7 of the Gas Act 1986, and license holders within the meaning of s64(1) of the Electricity Act 1989.

Part 13 comprises 11 Classes, each dedicated to a specific statutory undertaking.

Class 34 permits development by railway undertakers or their lessees on their operational land, and required in connection with the movement of traffic by rail.

Class 34 does not permit:

• the construction of a railway
• the construction or erection of a hotel, railway station or bridge
• the construction or erection of an office, or a building used for either residential or educational purposes or for an industrial process, a car park, shop, restaurant, garage or petrol filling station, unless wholly within a railway station.

Class 35 permits development on operational land by statutory undertakers or their lessees in respect of dock, pier, harbour, water transport, or canal or inland navigation undertakings, required:

• for the purposes of shipping, or
• in connection with the embarking, disembarking, loading, discharging or transport of passengers, livestock or goods at a dock, pier or harbour, or with the movement of traffic by canal or inland navigation or by any railway forming part of the undertaking

Class 35 does not permit:

• the construction or erection of a hotel, or of a bridge or other building not required in connection with the handling of traffic
• the construction or erection of a building used for educational purposes, or a car park, shop, restaurant, garage or petrol filling station, unless wholly within the limits of a dock, pier or harbour.

Class 36 permits the improvement, maintenance or repair of an inland waterway³⁸ (other than a commercial waterway or cruising waterway), and the repair or maintenance of a culvert, weir, lock, aqueduct, sluice, reservoir, let-off valve or other work used in connection with the control and operation of such a waterway.

Class 37 permits the use of any operational land by statutory undertakers in respect of dock, pier, harbour, water transport, canal or inland navigation undertaking for the spreading of any dredged material.

Class 38 permits, for the purposes of water undertakings:

• the laying underground of mains, pipes or other apparatus
• the installation in a water distribution system of a booster station, valve house, meter or switchgear house
• the provision of a building, plant, machinery or apparatus in, on, over or under land for the purpose of survey or investigation
• any other development carried out in, on, over or under the operational land other than the provision of a building but including the extension or alteration of a building

Class 38 does not permit:

• the construction of a reservoir
• the installation of a booster station or valve house exceeding 29 cubic metres in capacity if it is carried out at or above ground level or under a road used by vehicular traffic
• any development which would cause a material change in the design or external appearance of a building, or the height of the original building would be exceeded, or where the cubic content of the original building would be exceeded by more than 25%, or the floor area of the original building would be exceeded by more than 1,000 square metres, or it would consist of the installation or erection of any plant or machinery exceeding 15 metres in height, or the height of anything it replaces, whichever is the greater.

And provided that, in the case of a building, plant, machinery or apparatus required for survey or investigation, all such operations shall cease on completion of the survey or investigation, and all such buildings, plant, machinery or apparatus shall be removed within 6 months and the land restored as soon as reasonably practicable to its former condition (or to any other condition agreed with the planning authority).

Class 39 permits development by a public gas transporter required for the purposes of its undertaking, consisting of:

• laying underground of mains, pipes or other apparatus
• installation in a gas distribution system of apparatus for measuring, recording, controlling or varying the pressure, flow or volume of gas, and structures for housing such apparatus
• construction in any storage area or protective area ³⁹ of boreholes, and the erection or construction of any associated plant or machinery
• storage of pipes and other apparatus to be included in a main pipe being (or about to be) laid or constructed as part of a planning permission
• erection on operational land of a building for the protection of plant or machinery
• any other development carried out in, on, over or under the operational land of the public gas transporter

Class 39 does not permit:

• the installation of a structure for housing apparatus exceeding 29 cubic metres in capacity at or above ground level, or under a road used by vehicular traffic
• boreholes approved by the Secretary of State for Energy for the purpose of section 4(6) of the Gas Act 1965, or any plant or machinery higher than 6 metres
• a building higher than 15 metres
• a building, its reconstruction or alteration where its design or external appearance would be materially affected
• plant or machinery higher than 15 metres or exceeding the height of replacement plant or machinery, whichever is the greater.

And provided that:

• prior notification of the planning authority for the laying underground of mains, pipes or other apparatus.
• removal, within 9 months of completion of the laying or construction of a main or pipe, of temporarily stored pipes and other apparatus, and the land restored as soon as reasonably practicable to its condition before the development took place or as otherwise agreed with the planning authority.
• prior notification of the planning authority to establish whether the prior approval of the authority is required for the siting, design and external appearance of a building to protect plant and machinery.

Class 40(1)(a) permits development by statutory undertakers for the generation, transmission or supply of electricity for the purposes of their undertaking consisting of:

• the installation or replacement in, on, over or under land of an electric line and the construction of shafts and tunnels and the installation or replacement of feeder or service pillars or transforming or switching stations or chambers reasonably necessary in connection with an electric line;

Class 40(1)(a) does not permit:

• the installation or replacement of an electric line to which section 37(1) of the Electricity Act 1989 applies, or
• installation or replacement of a chamber for housing apparatus for an electric line at or above ground level or under a road used by vehicular traffic, where the chamber exceeds 29 cubic metres in capacity

And provided that:

• conformity of a replacement line with any conditions contained in a planning permission relating to the height, design or position of the existing electric line;
• removal of any temporary electric line providing a diversion for an existing electric line, on the ending of the diversion or within six months of completion of the installation (whichever is the sooner), and the land restored as soon as reasonably practicable to its condition before the installation took place or as agreed with the planning authority and the developer.

Class 40(1)(b) permits:

• the installation or replacement of any telecommunications line which connects any part of an electric line to any electrical plant or building, and the installation or replacement of any support for any such line;

Class 40(1)(b) does not permit:

• development within a national scenic area or a site of special scientific interest, or where the height of any support would exceed 15 metres, or the telecommunications line would exceed 1,000 metres in length.

Class 40(1)(c) permits:

• the sinking of boreholes to ascertain the nature of the subsoil and the installation of any plant or machinery reasonably necessary in connection with such boreholes;

And provided that:

• removal of any plant or machinery within 6 months of completion or the start of the development (whichever is sooner) and the land restored as soon as reasonably practicable to its condition before the development took place or as agreed with the planning authority.

Class 40(1)(d) permits:

• the extension or alteration of buildings on the operational land of the undertaking;

Class 40(1)(d) does not permit:

• exceeding the height of the original building, or
• exceeding the cubic content of the original building by more than 25% (or 10% in the case of any building in a conservation area or a National Scenic Area), or
• exceeding the floor area of the original building by more than 1,000 square metres (or 500 square metres in the case of any building in a conservation area or a National Scenic Area), or

Class 40(1)(e) permits:

• the erection on operational land of the undertaking of a building solely for the protection of plant or machinery;

Class 40(1)(e) does not permit:

• A building higher than 15 metres.

And provided that:

• prior notification of the planning authority to establish whether the prior approval of the authority will be required to the siting, design and external appearance of the building.

Class 40(1)(f) permits:

• any other development carried out in, on, over or under the operational land of the undertaking.

Class 40(1)(f) does not permit:

• a building, or the reconstruction or alteration of a building where its design or external appearance would be materially affected, or the installation or erection of additional or replacement plant or machinery higher than 15 metres or higher than any plant or machinery replaced, whichever is the greater.

Class 41 permits development required for the purposes of the carrying on of any tramway or road transport undertaking consisting of:

• the installation of posts, overhead wires, underground cables, feeder pillars or transformer boxes in, on, over or adjacent to a road for the purpose of supplying current to public service vehicles;
• the installation of tramway tracks, and conduits, drains and pipes in connection with such tracks for the working of tramways;
• the installation of telephone cables and apparatus, huts, stop posts and signs required in connection with the operation of public service vehicles;
• the erection or construction and the maintenance, improvement or other alteration of passenger shelters and barriers for the control of people waiting to enter public service vehicles.

Class 41 does not permit:

• installation of a structure exceeding 17 cubic metres in capacity.
• material change to the design or external appearance of a building
• any plant or machinery higher than 15 metres in height or higher than any plant or machinery it replaces, whichever is the greater;
• development, not wholly within an omnibus or tramway station

Class 42 permits development required for the purposes of the functions of a general or local lighthouse authority.

Class 42 does not permit:

• erection of offices, or the reconstruction or alteration of offices where their design or external appearance would be materially affected.

Class 43 permits development required for the purposes of Universal Service Providers consisting of:

• the installation of posting boxes, posting pouches or self-service machines;
• any other development carried out in, on, over or under the operational land of the undertaking.

Class 43 does not permit:

• erection of a building, or the reconstruction or alteration of a building where its design or external appearance would be materially affected;
• installation or erection of any plant or machinery higher than 15 metres or higher than any existing plant or machinery, whichever is the greater;
• installation of a posting pouch within a conservation area.

Class 43A permits any development relating to sewerage by a sewerage authority or by a person authorised under section 3A of the Sewerage (Scotland) Act 1968 in relation to that development, being:

• development not above ground level required in connection with the provision, improvement, maintenance or repair of a sewer, outfall pipe or sludge main or associated apparatus
• development consisting of the erection, construction, maintenance, improvement or other alteration of:

And provided that:

• prior notification is given to the planning authority.

Key questions

1. Are there particular impacts from ground based radio masts for railway undertakers that merit changes to PDR?

This was a specific issue of concern raised by a number of local authority planning officers responding to the GPDO questionnaire. They highlighted the anomaly between the rights of Network Rail to erect ground based radio masts, and the more limited rights of telecommunications code systems operators under Part 20 of the Order, with all the associated conditions and limitations. Local authority planning officers generally sought a reduction of rights within designated areas, and the specific removal of rights for ground based radio masts for railway undertakers under Class 34.

However, this anomaly is explainable on safety grounds. Network Rail's masts form part of a railway safety system, utilising radio waves as a means of driver to signaler communication. This system was developed in response to the findings of accident enquiries and is critical to the safe and efficient operation of the railway. The current roll-out of this system is a UK-wide programme. If Network Rail had to apply for planning permission for its radio masts, refusal of permission would have serious consequences for the implementation of the system, both in terms of safety and timing. Alternatively, setting a lower permitted height limit would necessitate a review of cell coverage, resulting in many more masts to meet the same requirements, with associated visual impacts. The concerns of planning authorities are with visual impact. The concern of the statutory undertaker is public safety and the unfettered ability, within limits, to fulfill obligations in the public interest.

There are no particular visual impacts from ground based radio masts for railway undertakers; in fact their impact is in many ways less than an equivalent other mast. Because Network rail's radio communication masts are bi-directional, rather than omni-directional, they have to be located adjacent to the track, and therefore can be seen as essential safety equipment associated with normal railway infrastructure.

2. What are the problems with the definition of 'operational land'?

There were general concerns expressed by local authority planning officers, and heritage organizations, about the scope for a wide interpretation of "operational land", resulting in inappropriate development. In general, statutory undertakers tend to interpret the definition to include all land in their ownership. For example, in respect of railway undertakers, there are sometimes issues with planning authorities about the interpretation of the extent of a 'railway station' under Class 34(2)(c), and therefore if development is not "wholly within a railway station" it does not benefit from the PDR under Class 34.

Operational land is not defined anywhere in the GPDO, neither in Article 2(1) nor in any of the separate interpretations for any of the relevant Parts. Instead, there is reliance on familiarity with the definition of operational land in s215 of the 1997 Town and Country Planning (Scotland) Act, where it is defined, in relation to statutory undertakers only, as meaning "land which is used for the purposes of carrying on their undertaking, and land in which an interest is held for that purpose". Sub-para (2) of s 215 seeks to make clear that such land is not operational where it is "comparable rather with land in general". S216 defines land which is not operational where " there is, or at some time has been a specific planning permission for its development and that development, if carried out, would involve or have involved its use for the purpose of carrying on the of the statutory undertaker's undertaking". Such a planning permission includes permission granted by a development order or Direction.

There is little doubt that the tortuous explanation of operational land in s215 and 216 of the 1997 Act creates uncertainties and confusions, exacerbated by the lack of inclusion in the GPDO itself. We have noted in the case law review in Section 3.0, that this is an occasional matter of dispute between planning authorities and developers, on which the courts have pronounced that, before any land acquired by statutory undertakers can be regarded as operational, there must be specific planning permission for its development for the purpose of the undertaking. ⁴⁰ This infers a restricted definition of operational land.

Statutory undertakers may also utilise PDR under Part 10 (repairs to services) and Part 11 (development under private Acts or Orders, subject to prior approval of the planning authority).

3. To what extent is there scope to simplify/rationalize/clarify the PDR to minimise the necessity for Article 4 Directions?

In Section 9.2 we analyse the current use by planning authorities of Directions under Article 4 of the GPDO, to restrict certain Classes of permitted development, usually within conservation areas. Figure 5 shows that such Directions are mainly used to restrict PDR for householder development, and for development by statutory undertakers, particularly for Class 34 (railway undertakings), Class 39 (public gas transporters), Class 40 (electricity undertakings), and Class 41 (tramway or road transport undertakings).

4. Should the prior approval process be universally abolished? If so, should those developments currently subject to it require full planning permission or retain PDR?

With the exception of Class 40(1)(e), in relation to electricity undertakings, prior approval of the planning authority is not a condition of PDR under part 13. However, prior approval is required for works under Part 11. Network Rail advise that, to date, 15 prior approvals have been sought under Part 11, mostly for relatively minor and non-controversial works such as bridge infill and bridge strengthening. It is a process that gives the local authority considerable scope for input particularly where they consider the works would "injure the amenity of the neighbourhood". However this phrase is open to interpretation and some clarification of its intent would benefit all parties.

5. Should there be a general principle that PDR are removed in all protected sites?

Most of the Directions under Article 4 relating to part 13 generally seek to control minor works by statutory undertakers in conservation areas. Universally removing PDR for minor works by statutory undertakers within all designated areas would significantly increase the annual number of planning applications, and is probably unnecessary given the powers of planning authorities to deploy Article 4 Directions, which provide a more fine-grained means of securing additional controls where necessary in specific local circumstances. Apart from archaeological interests, there was not a strong call for this measure. At the same time, such additional sweeping controls would greatly reduce the ability of statutory undertakers to react quickly to changing operational requirements and deal with safety critical issues. In the case of railway undertakers, works on and adjacent to the track require 'possessions' to be booked during which train movements are restricted. These must be booked months in advance and Network Rail incurs a cost for these and for any over-runs. The financial and operational consequences of missing these possessions as a result of delays in obtaining planning consent would be considerable. However, there is a case for removing PDR for works comprising the erection of an overhead electricity line within a National Park or National Scenic Area ⁴¹. The alternative of making such development conditional upon the prior approval of the planning authority would not be appropriate given our recommendation elsewhere to remove the requirement for prior approval where this was required on aesthetic or amenity grounds.

In addition, there were some concerns expressed from heritage interests about the impact of underground electricity transmission lines which, although they may reduce environmental impacts in the long term, have other issues of concern which may need to be addressed. Whilst the erection of a telecommunications line connecting with an electricity line (Class 40(2)(b)(i)) is restricted in NSAs and SSSI, and the erection of a building (Class 40(2)(c)(ii) and (iii) requires the prior approval of the planning authority (see Table 3), neither restriction applies in the case of a transmission line. However, consent for major electricity generation and transmission lines (under or over ground) is required under the 1989 Electricity Act, and so the GPDO applies only to those lines not covered by the Act, and associated infrastructure. We note that, in the equivalent Part G of the English GPDO, such developments are not permitted development in National Parks, Areas of Outstanding Natural Beauty, or Sites of Special Scientific Interest.

Recommendations

• There should be a clear definition of "operational land" included in a comprehensive glossary of terms.
• PDR for the installation of a new overhead electricity line under Class 40(1)(a) ⁴² should removed within National Parks and National Scenic Areas.
• Part 13 should be rationalized and simplified, with inconsistencies between Classes removed or minimized.

Justification

Statutory undertakers operate under fewer restrictions than are found in many other Parts of the GPDO, for example no special restrictions apply in designated areas. Each Class allows a specific statutory undertaker to carry out development required to fulfill its statutory duties, without having to seek planning permission.

A main concern of planning authorities and conservation bodies was whether the extensive PDR provided under the GPDO remain appropriate for statutory undertakers which, arising from privatization of public utilities since the 1990s, are now largely private companies. Additionally, the provisions of Part 13 were generally complex and difficult to understand, and interpretation of the provisions often required cross-reference to other legislation. In particular, a loose interpretation of operational land by statutory undertakers created conflicts with planning authorities in specific instances, arising from developments carried out by statutory undertakers which authorities considered fell outside their PDR. Impact arising from the use of PDR in conservation areas stimulated many planning authorities to seek control of such activities through Article 4 Directions.

There are differences between the PDR of different statutory undertakers, and between them and the PDR of other service providers under other Parts of the GPDO ( e.g. telecommunications code system operators).

There is no definition of operational land in the Order, nor any reference to s215 of the 1997 Act, where it is defined in tortuous terms. There would be benefit for all interests for a clear and unambiguous definition included n the GPDO itself.

As we report in Section 4.0, the GPDO grants PDR by type of development and type of developer, the latter by distinguishing between statutory undertakers and others. The GPDO grants to statutory undertakers more generous PDR than to other developers. In so doing, it creates inconsistencies - permitted development for specific operations and uses (eg telecommunications masts) varies between statutory undertakers and other developers.

7.6 AVIATION DEVELOPMENT (PART 14)

Part 14 comprises 9 Classes providing PDR for the Civil Aviation Authority, air traffic services ⁴³ licence holder or relevant airport authorities for works within, at or near an airport, as appropriate.

Class 44 permits development at an airport, and permits the carrying out on operational land by a relevant airport operator or its agent of development (including the erection or alteration of an operational building) in connection with the provision of services and facilities at a relevant airport.

Class 44 does not permit:

• construction or extension of a runway;
• erection of a building other than an operational building;
• alteration or reconstruction of a building other than an operational building, where its design or external appearance would be materially affected.

Additionally:

• the relevant airport operator must consult the planning authority before carrying out any development, unless:
• the development is urgently required for the efficient running of the airport, and
• it consists of works, or the erection or construction of a structure or of an ancillary building, or the placing on land of equipment, and the works, structure, building, or equipment do not exceed 4 metres in height or 200 cubic metres in capacity.

Class 45 permits air navigation development at an airport and the carrying out on operational land within the perimeter of a relevant airport, by a relevant airport operator or its agent, of development in connection with "air traffic services".

Class 46 permits air navigation development near an airport and permits the carrying out on operational land outside but within 8 kilometres of the perimeter of a relevant airport, by a relevant airport operator or its agent, of development in connection with "air traffic services"

Class 46 does not permit:

• any building for a purpose other than housing equipment used in connection with the provision of "air traffic services";
• any building higher than 4 metres; or
• the installation or erection of any radar or radio mast, antenna or other apparatus higher than 15 metres or higher than an existing mast, antenna or apparatus to be replaced.

Class 47 permits development by an air traffic services licence holder within an airport and permits the carrying out by such a licence holder or its agents, and within the perimeter of an airport of development in connection with "air traffic services".

Class 48 permits development by an air traffic services licence holder in connection with " air traffic services" on operational land.

Class 48 does not permit:

• any building for a purpose other than housing equipment used in connection with the provision of "air traffic services";
• any building higher than 4 metres;
• the installation or erection of any radar or radio mast, antenna or other apparatus which would exceed 15 metres in height, or higher than an existing mast, antenna or apparatus to be replaced.

Class 49 permits development by an air traffic services licence holder in an emergency, comprising the use of land by or on behalf of the licence holder in an emergency to station moveable apparatus replacing unserviceable apparatus, provide that :

• on or before the expiry of a period of 6 months beginning with the date on which the use began, the use shall cease, and any apparatus removed, and the land restored to its condition before the development took place, or to any other condition agreed with the planning authority .

Class 50 permits development by an air traffic sevices licence holder comprising the use of land by or on behalf of the licence holder to provide services and facilities in connection with "air traffic services", and the erection or placing of moveable structures on the land for the purpose of that use, provided that:

• on or before the expiry of a period of 6 months beginning with the date on which the use began, the use shall cease, and any apparatus removed, and the land restored to its condition before the development took place, or to any other condition agreed with the planning authority .

Class 51 permits development by the Civil Aviation Authority for surveys etc comprising the use of land by or on behalf of the Civil Aviation Authority for the stationing and operation of apparatus in connection with the carrying out of surveys or investigations, provided that:

• on or before the expiry of a period of 6 months beginning with the date on which the use began, the use shall cease, and any apparatus removed, and the land restored to its condition before the development took place, or to any other condition agreed with the planning authority .

Class 52 permits the use of airport buildings managed by relevant airport operators, comprising the use by a relevant airport operator of buildings within the perimeter of a relevant airport for purposes connected with air transport services or other flying activities at that airport.

There are no size limits for buildings granted permitted development under these Classes, provided that there is prior notification of the planning authority for buildings exceeding 4 metres in height and 2000 cubic metres in volume. As we remark in the audit of the GPDO in Section 4.0, aviation development is at the upper limit of permitted development under the Order.

Key questions

1. What changes are needed to the GPDO to resolve any anomalies with the Aerodrome safeguarding requirements?

Prior notification procedures should be retained and strengthened for some PDR within aerodrome safeguarding zones. In particular, it is recommended that telecoms masts (parts 20 and 21) and temporary buildings (part 4, class 14) within the safeguarding zone should be subject to prior notification procedures. In these instances prior notification should only be required in relation to developments of more than 3m in height within 3km of an aerodrome and 12m for developments within 15km of an aerodrome (this is in line with the PD limitations for agricultural buildings in Part 6 of the GPDO).

2. Will the changes to the GPDO made by an amendment order under the Transport Act 2000 resolve outstanding anomalies?

The Civil Aviation Authority ( CAA) and National Air Traffic Services ( NATS) each advised that, under sections 3 and 4 of the Transport Act 2000, en route air traffic services may only be provided by the holder of an air traffic services license granted by the Secretary of State for Transport. Such a license was granted to NATS (En Route) PLC from 28 ^th March 2001. To provide for these structural changes, SI 2006/1157 came into force in April 2006, adding to Part 14 the holder of an air traffic services license. This removed the previous anomaly in Part 14 as previously advised.

3. What are the problems with the definition of "operational land" (eg scope for airport authorities to extend car parks under PDR)?

A clear and consistent definition of operational land is required to assist both operators and local authorities. (see our recommendations in respect of Developments by Statutory Undertakers in Section 7.5).

4. Any other issues related to definitions ?

The definition of "operational building" should be clarified to make clear whether this includes or excludes multi-storey parking facilities. It is further recommended that multi-storey car parks are included in this definition, and operators and planning authorities are encouraged to negotiate over such issues through a planning agreement/protocol (as concluded in the response to question 5 below).

5. Should the prior approval process be universally abolished? If so, should those developments currently subject to it require full planning permission or retain PDR?

Prior notification procedures for aviation permitted development should be abolished. The removal of PN in this instance should be compensated by the introduction of planning agreements/protocols between local authorities, airport and air traffic operators.

Recommendations

• Part 14 of the GPDO should be rationalized and simplified into three Classes:

a) development by air traffic services licence holders and their agents;
b) development by the Civil Aviation Authority and its licensees; and
c) development by relevant airport operators or their agents.

Within each of these classes, the permitted development requirements should be specified.

• Airport operators and air traffic services licence holders should develop with local authorities protocols and on-going dialogue around airport development and traffic/transport issues.

Such an agreement would obviate the need to restrict PDR for multi-storey car parks.

• Multi-storey car parks should be specifically included in the definition of 'operational building' set out in Part 14 of the order.

• It should be clearly stated that some PDR will be subject to prior approval within an aerodrome safeguarding zone. This will apply to developments which are more than 3 metres high within 3 kilometres of an airport and 12 metres high within 15 kilometres of an airport. The Parts and Classes affected are: Part 20, Part 21 and Part 4 (Class 14)

Justification

The responses to the GPDO questionnaire indicated that the main concern of planning officers was the confusion and complexity in these nine classes, with subtle differences between them. There is scope for rationalization of these nine Classes into fewer classes, specifying PDR for different kinds of works, depending on their relationship to an authorised airport, and the purpose for which required.

The other key issue relates to prior notification: by the airport operator to the planning authority for certain buildings; by the planning authority to the airport operator for permitted development within an aerodrome safeguarding zone.

Within aerodrome safeguarding zones, operators find that most difficulties arise from temporary buildings, forestry and agricultural buildings, telecoms masts and wind turbines.

Whilst we have argued elsewhere that prior notification to the planning authority for the purpose of influencing siting, design and external appearance should be abolished, we have said this should not apply where safety issues are the key concern. So we do not consider that it would be appropriate to restrict PDR in these instances, but to ensure that operators are properly notified and consulted through the prior notification procedure. Agricultural buildings and wind turbines are already limited within safeguarding zones, thus the recommendations concentrate on telecoms and temporary buildings (where no such restrictions are in place). The parameters suggested are based on the current limitations for agricultural buildings set out in the order.

The definitions of operational land used in Part 14 vary according to the nature of the operator (airport operator vs air traffic control operator). Operational land for airport operators appears to be defined in legislation, and relates to land owned or within the airport boundary at a specific date. However, Class 46 of the GPDO mentions 'operational land outside but within 8km of the perimeter of a relevant airport' which does not fit with the definition outlined above. In addition, the definition of operational land which relies on a particular historical date is likely to create problems as airports acquire land for purposed expansion.

Although the definition of operational land does not appear to create any problems in current practice, (related to Part 14) there is nevertheless a strong argument for the inclusion of a new definition which can be consistently applied to all operators (and statutory undertakers), and which allows for changing land ownership ( i.e. does not relate to a particular moment in time).

Definitions of operational building appear to be problematic, despite definition within the order. A particular issue is the construction of multi-storey car parks, and whether these fall within the definition of operational building. Although it was suggested that some distinction could be made between short-term and long-term car parks (with short term being operational, and long-term not), such a proposal appears to be fraught with difficulty. Instead, the GPDO must make clear whether multi-storey car parks (regardless of their intended use) are operational buildings.

The concerns of local authorities about multi-storey car parks relate both to design and impact on local transport strategies. Requiring a planning permission for such developments would allow scrutiny of both elements of a proposal. However, it could also cause conflict between the operator and the authority, and affect the operation of the airport if agreement cannot be reached.

7.7 DEMOLITION OF BUILDINGS (PART 23)

Current PDR

Class 70 permits a building operation consisting of the demolition of a building.

Class 70 does not permit:

• Demolition of an unsafe or uninhabitable building caused by the action or inaction of any person having an interest in the land on which the building stands; and
• it is practicable to secure safety or health by works of repair or works for affording temporary support

And provided that:

• in the case of a building where demolition is urgently necessary in the interests of safety, written justification is provided to the planning authority otherwise;
• application is made to the planning authority for a decision whether its prior approval is required for the method of the proposed development and any proposed restoration of the site.

Planning permission is required for building operations, including the demolition of buildings. A "building" is defined in s277 of the 1997 Town and Country Planning (Scotland) Act as including any structure or erection, and any part of a building. S26(2)(g) empowers Scottish Ministers to specify in a Direction that demolition of any description of building is not development. A Direction was issued in January 2001 ⁴⁴, in the light of Shimuzu ( UK) v Westminster City Council (1997, 1 All ER 481), re-establishing development as including the demolition of any part of any gate, fence, wall or other means of enclosure in a Conservation Area ⁴⁵.

The Direction specifies that demolition of the following types of building is not development:

• all buildings other than dwellinghouses, buildings containing one or more flats, or buildings adjoining the main wall of a dwelling house or a building containing flats ⁴⁶
• any Listed Building (since Listed Building Consent will be required)
• a building in a conservation area (since Conservation Area Consent will be required)
• a building which is a scheduled monument (since Scheduled Monument Consent will be required)
• any building exceeding 50 cubic metres in volume
• the whole or any part of a gate, wall, fence or other means of enclosure.

For buildings not specified above, Class 70 of the GPDO grants permitted development for its demolition (unless it is unsafe or uninhabitable, and that repair works are required to secure safety or health), subject to prior notification of the planning authority, unless it is demolition necessary in order to implement a planning permission for redevelopment of the site, or as a consequence of an agreement under section 75 of the 1997 Act.

The GPDO cannot grant PDR for the demolition of part of a building, because, as a consequence of Shimuzu, partial demolition may not be development.

Overall, there is a need for clarity on the application of the GPDO, its relationship to the 2001 Direction, and to consents under other legislation suggesting, at minimum, the need for a review of this Class in relation to the 'Demolition Which Is Not Development' Direction to provide a simpler, clearer statement of PDR for the demolition of buildings.

Key questions

1. How to clarify whether development needs permission and, if so, when it is permitted?

Since most demolition is not development, Part 23 permits demolition only of a limited range of buildings.

Confusion, especially among local authority planning officers, about when demolition is development, is permitted, and needs permission, could be resolved by bringing all demolition under one definition of development, cross-referencing the GPDO with the Planning (Listed Buildings and Conservation Areas)(Scotland) Act 1997, to minimize misinterpretation of Class 70 and avoid potential unauthorized demolitions of Listed Buildings, Scheduled Monuments, and buildings in Conservation Areas. Reviewing the requirement for prior approval. The alternative suggestion of bringing all demolition within the GPDO and making it permitted, subject to prior approval, does not address the fundamental problem of the principle of demolition, which prior approval could not address, and would add an additional layer of decision making in the face of Listed Building, Conservation Area, and Scheduled Monument consent. The issue of rationalizing the consent procedures between planning and related legislation is beyond the scope of the GPDO review.

2. How can confusions of this Class in relation to "Demolition which is not Development" Direction be minimised or avoided ?

By reconciling the Direction with the GPDO. Confusion partly arises as a consequence of the problem of updating the GPDO in response to associated legislation, which we address in section 9.7.

Recommendations

• Part 23 should be updated in the light of the 2001 (Demolition which is not development) Direction .
• "building" and "demolition" should be clearly defined in a comprehensive glossary of terms, held at one place in the Order, and cross-referenced to Part 23 as revised.

• The requirement for prior approval of the planning authority should be deleted.

7.8 MICROGENERATION (NEW PERMITTED DEVELOPMENT)

Current PDR

The GPDO does not refer to microgeneration. Some installations are PD by default, and some which are not are variably treated as such by local authorities - for example, solar thermal panels which exceed the Class 2(2)(b) limit of 10cm protrusion from the plane of the roof of a dwellinghouse.

Key questions

1. Should the GPDO deal explicitly with microgeneration?

Recommendations

• The GPDO should deal explicitly with microgeneration development.

Justification

The GPDO is not consistent in whether or not it names explicitly types of development. It does so when it appears pragmatic to do so. We believe that the policy context, and the prevailing uncertainty over how to handle microgeneration development, together point to the desirability of dealing with it by name.

2. Is it best done within existing Classes, or through dedicated new Classes and maybe a new Part?

Recommendations

• The GPDO should distinguish between householder and non-householder microgeneration development.
• Householder should refer to all types of dwelling. Non-householder should refer to all types of buildings other than dwellings.
• For householder development, microgeneration should be separately recognised within Part 1. It should be presented within Part 1 in groups of technologies with similar impacts.
• For non-householder development, a new Part dedicated to microgeneration should be inserted in the Order, presented by groups of technologies with similar impacts.
• Separate user guidance should be produced in relation to microgeneration PD, illustrated and written in plain English.

Justification

We have proposed in our householder development report that a separate Part be retained for householder development, and we believe that this should hold for microgeneration as for any other kind of development. Notwithstanding our recommendation in that report to reduce the number of Classes in Part 1, since we have recommended above separate recognition of microgeneration, it follows that it should be presented separately within Part 1; and we think that would be achieved most clearly by creating a dedicated Class within that Part.

Since the impacts of microgeneration development vary considerably according to the technology (see below under question 5), we think it advantageous to divide the new Class into a number of sub-Classes corresponding to technologies with similar impacts. From our analysis under question 5, we propose sub-Classes for:

• solar thermal panels and PV (photovoltaic) arrays
• wind turbines
• biomass, biofuels and micro- CHP (combined heat and power)
• heat pumps
• micro-hydro

We have proposed in our householder development report granting to flats the same PDR as to dwellinghouses. In pursuit of simplicity and clarity, we recommend that this also be the case for microgeneration development, granting the same PDR to all types of dwellings from detached villas through terraces to flats. The Executive would still have the option if it saw fit of inserting some refinements or distinctions by means of limitations, exclusions or conditions.

For non-householder microgeneration development, we recommend the creation of a new Part, divided into Classes corresponding to the above categories of technology. This is because there is no existing Part which offers an obvious home to a new dedicated Class. An alternative would be a new Part with a single Class divided into sub-Classes, as proposed for householders.

A peculiarity of the existing GPDO is that it does not refer at all to a range of building types, notably shops and offices, between Part 1 dwellinghouses and Part 8 industrial buildings and warehouses. In order explicitly to encourage the rollout of microgeneration to such premises, which form a large proportion of the built stock, the proposed new Part would have to name them. In pursuit of clarity and simplicity, we recommend that the new non-householder Part instead make it clear that it applies to all buildings other than dwellings, and that it grant them all the same PDR. The Executive would still have the option if it saw fit of inserting some refinements or distinctions by means of limitations, exclusions or conditions.

However the Executive decides to deal with microgeneration development in the GPDO itself, we strongly recommend the production of a user's guide to accompany the GPDO. This should be written in plain English, should be illustrated, and should point clearly to where the GPDO deals with microgeneration.

3. Is the Climate Change and Sustainable Development Act 2006 definition of microgeneration (see appendix to this section) appropriate and sufficient?

Recommendations

• The GPDO should define microgeneration as in s4 of the Climate Change and Sustainable Energy Act 2006, excepting that:

• The definition should additionally clarify that microgeneration:

• The definition should be cross-referenced to a comprehensive glossary of the GPDO.

Justification

We considered three candidate terms for referring to small-scale energy generation: microgeneration, microrenewables and micropower. The choice should follow from what the policy agenda is driving at, which is reducing carbon emissions, as recognized in item (j) of the Climate Change and Sustainable Development Act 2006 definition ⁴⁷.

We reject micropower because it excludes heat generation. Microrenewables are the name of the Annex to Planning Advice Note ( PAN) 45: Renewable Energy Technologies. These include heat generation, but exclude devices which save carbon emissions by raising overall efficiency while still burning fossil fuels to generate heat and electricity, such as gas or oil fired micro- CHP. We have therefore opted for microgeneration, which has a strong basis in the UK 2006 energy review and the GPDO review in England, and is also mentioned in the PAN 45 Annex.

The question arose whether to include also devices that do not generate heat or electricity, but do save carbon emissions by raising energy efficiency, e.g. external sun blinds. Our firm conclusion is that the conceptual envelope should be restricted to generation devices, as the term itself clearly implies, and as the Climate Change and Sustainable Development Act 2006 clearly states. We found no strong call to include non-generation devices, and it would be impossible to draw a conceptual boundary once they were included.

Is the Climate Change and Sustainable Development Act 2006 definition then adequate? The consensus of the microgeneration workshop was that it is a sensible starting point, but needs some improvement:

• For the purposes of the GPDO the definition should be expanded to include explicitly air, water and ground source heat pumps.
• The term geothermal should be excluded, since that is generally understood to refer to larger scale technology tapping heat from hot rocks below the surface, or steam geysers driven by hot rocks.
• The term biofuel should be excluded. Since we have included in our definition of microgeneration only devices that generate electricity or heat, it should exclude those that produce a biofuel, as a by-product of their primary purpose of waste management. Farm-based digesters yielding biogas would therefore be excluded (although they could be the subject of a separate Class elsewhere if it were deemed appropriate, e.g. under Part 6). That leaves only installations that have the primary purpose of burning biofuels to yield heat or electricity, and we see these as equivalent to biomass or micro- CHP as may be. They may require a liquid or gas biofuel storage container, but this would be covered by expanding the definition of existing Class 5 oil and LPG storage containers or its replacement under our proposed revised Part 1.

4. Should treatment in the GPDO be blind to whether the development has any commercial potential?

Recommendations

• The GPDO should be blind to whether or not the development has commercial potential.

Justification

This question arose because one of the incentives to installing micro devices is the possibility of exporting electricity for revenue at times when generation exceeds demand on the premises. We recommend that the GPDO should be blind to this, because:

• Installing microgeneration devices primarily to export energy from the premises is for technical reasons not a commercial proposition.
• Any distinction would be unenforceable: one cannot see whether the energy is being used on site or exported.
• The distinction is better dealt with through the definition of micro, i.e. the limits set to PDR (see next question).

Notwithstanding this, we recommend that

• The proposed user guidance should make it clear that microgeneration development refers to installations intended primarily to meet the needs of the premises. We suggest that the Executive also consider whether a condition to this effect might beneficially be inserted in the GPDO itself.

5. How should limits to PDR be expressed ( e.g. spatial dimensions, location, energy capacity)?

Recommendations

General

• PD limits should be set for each technology or group of technologies using the most practicable attribute(s).
• Without prejudice to this, a PD noise constraint should be imposed on all installations. We propose that this be expressed as a condition, requiring that noise emitted by the installation should not be received at a level exceeding 45dB(A) absolute inside a room of any neighbouring property; and 35dB(A) inside a room in which persons might reasonably be expected to sleep, and in which windows are open to allow reasonable ventilation.
• The combined microgeneration installations within the curtilage of a single building should not exceed 50kW or 45kW thermal.
• A general condition should be inserted for all microgeneration that the development must comply with a design code (which would therefore have to be prepared and adopted).

Recommendations for individual technologies, subject to those above, are as follow:

Wind turbines

• PD limits should be set in terms of size and location as follow, and should apply to all types of building:
• The rotor diameter of a building-mounted turbine should not exceed 2.2m.
• No part of a building-mounted turbine to be more than 4m above the highest point of the roof of the building to which it is attached.
• No part of a building-mounted turbine should in any attitude overhang a neighbouring property.
• The rotor diameter of a free-standing turbine should not exceed 3.5m.
• The hub height of a free-standing turbine should not exceed 10m.
• No part of a free-standing turbine should be less in any attitude than the turbine's ground-to-blade-tip height from the boundary of a neighbouring property.
• PDR should be removed within 3km of the boundary of an aerodrome.

Biomass

• For householder development, the generic PD limits should apply to external boiler houses, fuel stores and water tanks. These should be the limits proposed in our householder report, or as a default those in existing Class 3.
• For flues, the generic limits recommended in our householder report should apply; or, as a default, a flue should not exceed whichever is the greater of the highest point of the roof of the dwelling or any existing chimney of that dwelling, whether the flue is attached to the dwelling itself or to a separate structure within its curtilage.
• For non-householder development, the generic limits applying to plant and machinery in existing Class 24, industrial and warehouse development, should apply.

Fuel cells

These have little or no external aspect, and will therefore generally not fall within the definition of development. No recommendations.

PV and solar thermal

Limits should be set in terms of surface coverage and protrusion beyond the plane of the substrate, as follow:

• For both householder and non-householder development, PV and solar thermal panels mounted on the plane of a sloping roof or wall should be subject to a PD limit of 15cm protrusion beyond the plane of the substrate.
• Installations on flat roofs, which are mounted at an angle to the roof, should be dealt with separately. We recommend that further work on this matter be undertaken, but propose meanwhile, for all types of building, a default PD limit of 3m from the plane of the roof to the highest point of the installation.
• For all types of building, up to 100% coverage of any surface should be PD.
• For free standing fixed arrays, householder installations should be subject to the generic PD limits proposed in our householder report or, as a default, those in the existing Class 3. For non-householder development, the generic limits applying to plant and machinery in existing Class 24, industrial and warehouse development, should apply.
• Moveable and tracking arrays should not be PD.

Micro-hydro

• Schemes on existing engineered channels up to 50kW should be PD. Those over 50kW or on natural or semi-natural water bodies should not be PD.

Heat pumps

• A general condition should be inserted of 'not causing loss of amenity by virtue of noise, vibration, smell, fumes etc.'
• Ground source heat pumps should be PD, except where they would affect a Scheduled Monument or its setting, or negatively affect a site listed in a Sites and Monument Record.
• Water source heat pumps should be PD, except in a SSSI or Listed Wildlife Site identified in the Development Plan.
• Air source heat pumps should be PD subject to the generic limits for protrusion beyond the plane of a wall.

Micro- CHP

• PDR should be as for biomass. Where heat dump radiators are required on the roof, these should be treated in the same way as a PV array mounted on a flat roof.

Justification

How we set the limits to particular microgeneration devices defines what is meant by micro, as opposed to meso and macro. We believe that the chief criteria for delimiting PDR should be risks to amenity and the natural environment. These cover such things as visual intrusion, noise, vibration, smell and damage to wildlife, and vary by technology. It would nevertheless be convenient if we could express limits appropriate to each technology in a common currency, which could readily be applied through manufacturers' specifications.

The Climate Change and Sustainable Energy Act defines microgeneration by a common currency of energy capacity. The Act's limit of 50kW or 45kW thermal equivalent is very generous for most microgeneration devices likely to be installed primarily to meet the needs of the premises. It would for example allow a very intrusive wind turbine, much larger than could be mounted on a dwellinghouse and large enough to interfere with wireless transmission, or a PV array almost 20m square. It would therefore not be appropriate to apply the blanket 50kW limit to all microgeneration technologies: different technologies would need different energy capacity limits. It is however beyond the resources of this contract to determine for each technology the energy capacity that would correspond to limits set by other measures.

Failing that, we have opted for expressing limits in measures which relate most closely to the chief impacts of each technology. For simplicity, we recommend that the GPDO group together technologies with similar impacts. We nevertheless retain energy capacity as a common currency to address the problem of the accumulation of different types of device on a single building or plot.

Noise is one impact which is common to those technologies with moving parts. The GPDO could address this by imposing minimum separation distances, but we think defining these in a reasonable way these would result in the sort of complexity we are seeking to avoid in the revised Order. We therefore recommend instead imposing a universal condition requiring the developer to ensure that the noise received by neighbouring properties will not exceed a certain limit. This approach will encourage suppliers of devices to ensure that their devices will meet the limit in most situations, and will encourage owners to maintain their devices. For simplicity and clarity, we recommend just two limits: 45dB(A) absolute inside a room of any neighbouring property, reduced to 35dB(A) inside a room in which persons might reasonably be expected to sleep, with windows open enough to allow reasonable ventilation. From the information available to us, including that in PAN 56 Planning and Noise, we believe that these limits will protect amenity while accommodating devices suitable to meet the needs of the premises in which they are installed. This approach has the merit of cutting across all situations, as opposed to defining distance or reception limits for sensitive only, non-sensitive only, mixed sensitive and non-sensitive etc.

Visual intrusion is another impact common to several of the technologies, including solar thermal and PV panels and wind turbines. We do not believe that the risk requires the wholesale removal of PDR in all protected areas.

• We recommend that the Executive consult further with Historic Scotland, and that meantime:

Wind turbines

Two types of location are possible: building-mounted and free-standing. The former might not always be on the main or tallest building; for example, it might be on a garage in the grounds of a dwellinghouse. The possible impacts are visual intrusion, noise, interference with radio waves, danger to birds and bats, vibration, and structural damage to a supporting structure.

Because the location of one land use relative to those around it can vary widely, we propose for simplicity a single set of PDR to apply to all building types ( i.e. dwelling or other).

We do not think that the GPDO can address vibration and structural damage, which are matters for building standards, other than by a general condition requiring compliance with that regime.

Impact on wildlife is not considered to be a significant risk. Any danger to birds would be offset by the gains of sustainable energy. No view was obtained on bats.

Interference with wireless transmission is a risk of large or high turbines. For example, a 50kW output would permit free-standing turbines that can cut links between transmitters and receiver. There may also be a risk of interference with radar systems/air traffic control for the larger freestanding turbines. Turbines small enough to be building-mounted are thought not to pose a risk, although it is not clear whether there would be any cumulative impact of several small turbines, and monitoring may be necessary. These concerns could be dealt with through prior notification to obtain the views of the relevant undertakers or authorities, but this would impose a universal constraint to catch a small minority of problem cases. We have argued elsewhere against prior notification in general, and believe that the risk is more efficiently averted by setting PD limits which will minimize it, while still permitting devices of domestic scale. Taking on board representations by the wind energy and transmission industries, we believe that the limits proposed in the next paragraph on grounds of visual intrusion would suffice. Notwithstanding this, PDR should for safety reasons be removed within 3km of the boundary of an aerodrome.

Visual intrusion could be addressed through size limits or separation distances, both of which are enforceable. We have opted for a mixture: setting universal size limits which seek to align with the policy agenda by encouraging uptake, and to accommodate devices currently on the market, while protecting amenity; and simple rules for separation from neighbouring properties:

• for free-standing turbines a maximum hub height of 10m, a maximum rotor diameter of 3.5m, and no part to be less in any attitude than its ground to blade tip height from the boundary of a neighbouring property;
• for building-mounted turbines no part to be more than 4m above the highest point of the tallest building on the premises, a maximum rotor diameter of 2.2m ⁴⁸, and no part in any attitude to overhang a neighbouring property. The limit of 4m above highest existing point is intended to permit a device with a diameter of 2.2m plus clearance. Anything taller than this is unlikely to be secure anyway because of the forces exerted by wind on the mounting.

At the time of writing, we are aware that the Scottish Building Standards Agency is undertaking research on the impact of wind turbines and solar panels on the structural loading of roofs and walls, and the effects of vibration. We have stated on the previous page that these are not matters that can be addressed in the GPDO, since they are matters for Building Standards legislation. Notwithstanding our recommendations, PD does not remove the general need for compliance with other regimes where relevant.

Biomass

We can distinguish three categories of device: indoor stoves and room heaters, domestic boilers for central heating, and small commercial boilers for district heating. The latter two categories could be indoors or outdoors. Planning impacts are confined to outhouses that accommodate boilers, fuel stores and water tanks, and to flues. We conclude that the limited external impact of biomass installations means that it is not necessary to establish specific PDR for this technology. We recommend that, for householder development, the generic PD limits proposed in our householder development report or, as a default, those in existing Class 3, should apply to external boiler houses, fuel stores and water tanks.

A limit should also be set for flues, which are not explicitly addressed in existing Class 3. Some parties consider that flues should be PD, but we were made aware of a scheme in commercial premises which had a 16m flue. Hence we propose that some limit is imposed. We propose that:

• for householder development, the generic limits recommended in our householder report should apply; or, as a default, that a flue should not exceed whichever is the greater of the highest point of the roof of the dwelling or any existing chimney of that dwelling, whether the flue is attached to the dwelling itself or to a separate structure within its curtilage.
• Following the principles of clarity and simplicity, we believe that, for non-householder development, the generic limits applying to plant and machinery in existing Class 24, industrial and warehouse development, should apply to all buildings which are not dwellings.

Biofuels

We have addressed under question 3 what should be covered by this term. Installations falling within our proposed definition of microgeneration raise the same issues as biomass, excepting that there may also be fuel storage

Fuel cells

These tend to be mainly internal, similar to domestic CHP, for which they may be the energy source, and have little or no external impact. Any external impacts could be picked up under the generic limits of the Order.

PV and solar thermal

These are the commonest microgeneration devices. Most are building-mounted, but they can also be free-standing. If building-mounted, they can also be on roofs or walls; and whether building-mounted or free-standing they can also be fixed, movable or tracking; and, if fixed, they can be permanently or temporarily so.

In the case of building-mounted installations there are two issues: protrusion from the plane of the substrate (supporting surface), and coverage of that substrate. Non-protruding installations, such as PV tiles in lieu of normal ones, are already permitted and raise no issue except matching other roofing material. Existing Class 2 householder rights allow roof-mounted installations that cover no more than 10% of the roof, and stand no more than 10cm proud of the plane of the roof. With respect to protrusion, the 10cm limit is too tight for solar thermal panels, which normally protrude a few more cm than that. Relaxing the limit to 15cm would allow most installations to be PD. This does not align with existing Class 2 or our proposed revised Part 1, raising the question of fairness and consistency relative to roof lights and other alterations to the roof. Nevertheless, we believe, as with our proposals above for wind turbines, that encouragement of uptake to implement sustainable energy policy indicates privileged treatment of microgeneration development.

The issue of roof coverage is more complicated. The existing generic 10% limit was not devised to deal with the visual impact of microgeneration installations, and is low for generation purposes, doing nothing to encourage uptake. Again we believe that, in order to encourage uptake, more generous PDR must be granted to microgeneration than to other types of development. Coverage by solar thermal panels is likely to be self limiting, as there is only so much hot water a building can consume. This is not true for PV, where people may be want to have as much coverage as possible - and may want to combine it with solar thermal. The sense of the workshop was that total coverage is acceptable because it is visually coherent, whereas partial coverage is likely to be less visually coherent. Under these circumstances, we conclude that choosing some limit below 100% coverage would be arbitrary, and that coverage up to 100% should be PD; and that the best way of dealing with appearance is to insert a condition of compliance with design guidance.

Flat roofs occur on a considerable proportion of Scottish buildings. PV and solar thermal panels on flat roofs are angled to catch the sun, and would fail our proposed 15 cm projection limit. They will however often be invisible from the ground, being set back from the edge of the roof and/or masked by a parapet, or by a pitched roof. We recommend that further work be undertaken on this matter, but propose meantime a pragmatic default PD limit of 3m above the plane of the supporting flat roof, or up to the threshold of visibility from the nearest public way, whichever is the higher.

The GPDO imposes no specific PD limits on roof alterations to buildings other than dwellinghouses. We propose, as we have above for wind turbines, that our recommended PDR for solar thermal and PV apply equally to all buildings. This may impose an unnecessary constraint on e.g. industrial buildings or warehouses, where larger installations would pose little environmental risk. But we believe that, since in these cases the applicant is a business, and a larger installation will already be a considerable expense, the burden of applying for permission is not unreasonable as the price of simplicity and clarity for all potential types of applicant.

Moveable and especially tracking PV arrays raise complications which would require complexity in the Order, indicating that they should either be treated as fixed ones or enjoy no PDR. We favour the latter, as in Scottish conditions of mainly diffuse light they are not likely to be common, thus creating little extra burden. For clarity, they should be explicitly excluded.

Micro-hydro

Micro-hydro can generate a range of impacts, including ecological and hydrological, unlikely to result from most microgeneration technologies. Given the nature of these impacts, we propose using energy capacity to define a size limit, and as a default opt for the generic one of 50kW. The prevailing view at the workshop was that the potential impacts limit the potential to allow PDR. The EIA (Scotland) Regulations override PDR to provide a long stop on environmental impacts, but the indicative threshold under Annex 2 is a capacity of 500kW, ten times the microgeneration limit. Moreover, given the relative cost and size of such projects, requiring a planning application seemed to us unlikely to increase project cost or timescale significantly. However, this view was shaken by a report that an English inventor is developing a micro-hydro system using small amounts of water and a modest 1m drop, with the potential for widespread application at a cost comparable with other microgeneration technologies (below £5000). Its most likely application would be to engineered water channels such as old mill lades.

In the light of this we recommend PDR for projects up to 50kW which make use of existing engineered channels, but not for those which use non-engineered water bodies or are over 50kW. We note that SEPA is currently working under the Water Framework Directive on a characterisation of water courses that might further help to define conditions for PDR.

Heat pumps

Ground source heat pump installations are underground and internal to the building, so are PDR under existing Classes. The only realistic issue is that archaeological remains might be affected by burying the coil, particularly for horizontal coils. This is readily addressed by removing PDR where installation would affect a Scheduled Monument or its setting, or negatively affect a site listed in a Sites and Monument Record. PAN42 Archaeology para 37 also reminds planning authorities that they can use Article 4 powers to protect known sites or their settings from permitted development. Consideration might further be given to requiring notification of the development to the planning authority in the event of unknown archaeological remains being revealed by installation. This would permit the authority's archaeologist to carry out a field evaluation to determine whether a planning application should be required, enabling protection or emergency excavation as appropriate ( PAN42, paras 17-36). However, we are not convinced that the risk warrants such a restriction, and stop short of recommending it.

Water source heat pumps differ only in that the coil runs into a water body, so there is again little visual impact or external development. Since it requires the building to be quite close to the water body, it will be viable for only a small number of properties. There is a small risk to valued watery habitats, which may be addressed by removing PDR in SSSIs and Listed Wildlife Sites identified in the Development Plan. Otherwise such development should be PD.

Air source heat pumps include wall-mounted units similar to an air conditioning unit. Visually, they fall under generic provisions for protrusions beyond the plane of the wall. There is a noise risk, addressed by the generic noise condition we have proposed above.

Micro- CHP

Micro- CHP systems are like domestic boilers, and thus have little or no impact on the external appearance of a building beyond the normal flue. Larger scale schemes ( e.g. community) are also usually inside existing buildings, but may be housed in a dedicated building up to the size of a garage. They may also require heat dump radiators, which are usually sited on the roof of the heated building.

We conclude that micro- CHP schemes share many characteristics with micro-biomass schemes and should be treated in the same way with respect to outhouses, fuel stores and flues. It appears to us logical to treat roof-mounted heat dump radiators in the same way as PV arrays mounted on a flat roof.

6. Should we consider the option of requiring prior notification before PDR can be exercised?

Recommendation

• Prior notification should not be required before PDR for microgeneration development may be exercised.

Justification

We propose elsewhere the general abolition of prior notification for siting, design or appearance, and its retention only on grounds of health and safety or a specified third party interest. We believe that the limits to PDR that we propose above obviate the need for prior notification on the latter grounds where relevant.

7. Should there be a general principle that PDR are removed in all protected sites? (National Scenic Area, National Park, Site of Special Scientific Interest, Special Area of Conservation, Special Protection Area, Historic Garden or Designed Landscape, Conservation Area, A listed building, Scheduled Monument, Site of Archaeological Interest)?

Recommendations

• PDR for microgeneration development should not automatically be withdrawn in all types of protected area.
• PDR should apply to installations attached to Listed Buildings.
• PDR should not apply to development that might affect the setting of a Listed Building but is not attached to it.
• In conservation areas, PDR should be withdrawn where the installation would adversely affect an elevation facing a public way (whether or not it is attached to that elevation).
• PDR should apply in National Scenic Areas and National Parks.

Justification

The limits proposed above constrain the size and impacts of developments, and separate consent regimes, such as the EIA Regulations, the Habitats Regulations and the Controlled Activities Regulations, impose further safeguards. Therefore we see no reason automatically to withdraw microgeneration PDR in all protected areas.

The GPDO in principle removes PDR from Listed Buildings. However, a case can be made that this is unnecessary, since Listed Building Consent already provides a safeguard in such cases. PDR should however be withdrawn from development that might affect the setting of a Listed Building but is not attached to it, because this case is not covered by the consent regime.

It might appear consistent with the purpose of National Scenic Areas, and the withdrawal of PDR therein ⁴⁹, to withdraw any PDR also from microgeneration. However, we believe this to be unnecessary, because the grain size of the visual interest for which such areas are designated is fundamentally large relative to the size of microgeneration installations. Hence we propose that PDR apply there. We likewise propose that they apply in National Parks (where PDR are currently not withdrawn), for the same reason. The settlements in National Parks, and indeed in National Scenic Areas, may be an important visual component of their heritage value, but that is defensible through Conservation Area status and Article 4 Directions.

Conclusion

Microgeneration development is a large topic, complicated by the range of technologies and of contexts in which they may be installed. Our recommendations seek a balance between enabling the uptake of microgeneration in response to the government's sustainable energy agenda, and the protection of private and public amenity. We have nevertheless in some instances recommended increasing PDR for microgeneration over those for other development, where we believe it to be the price of encouraging uptake, or to be the price of meeting our prime directive of clarity and simplicity in the Order.

Appendix to 'New PDR: Microgeneration'

Definition of microgeneration in Climate Change and Sustainable Energy Act 2006 s4

"'Microgeneration' means the use for the generation of electricity or the production of heat of any plant (which, for this purpose, includes any equipment, apparatus or appliance)- (a) which, in generating electricity or (as the case may be) producing heat, relies wholly or mainly on a source of energy or a technology mentioned in subsection (7) of section 82 of the Energy Act 2004 (c. 20)*, and (b) the capacity of which to generate electricity or (as the case may be) to produce heat does not exceed the capacity mentioned in subsection (8) of that section**"

*" Those sources of energy and technologies are-

(a) biomass;

(b) biofuels;

(c) fuel cells;

(d) photovoltaics;

(e) water (including waves and tides);

(f) wind;

(g) solar power;

(h) geothermal sources;

(i) combined heat and power systems;

(j) other sources of energy and technologies for the generation of electricity or the production of heat, the use of which would, in the opinion of the Secretary of State, cut emissions of greenhouse gases in Great Britain."

**"That capacity is - (a) in relation to the generation of electricity, 50 kilowatts; (b) in relation to the production of heat, 45 kilowatts thermal."

7.9 WASTE MANAGEMENT (NEW PERMITTED DEVELOPMENT)

Current PDR

The GPDO does not refer to waste management operations per se.

There is reference to waste disposal operations under: Parts 6 and 7 (formation of tracks and hard standings for agricultural or forestry purposes) usable in combination with the PDR granted to tracks for farming; for industrial and warehouse development under Part 8; importation of waste for repairs to private roads and ways under Part 9; and Part 18 permits the tipping at a mine of waste derived from work on that site. However there are no PDR specifically for waste management facilities. The resulting burden of having to apply for sundry minor works, associated e.g. with the management of existing waste facilities, is an unnecessary cost and a disincentive to modernising waste management

Key questions

1. What development, regulated through a license/other consent, might be appropriate as PD ?

Research for the Executive carried out in 2004 ⁵⁰ identified as a high priority the need for a new class of permitted development to avoid the need for planning permission for minor developments required as a consequence of changes in environmental permits (Waste Management Licence, Pollution Prevention and Control, Control of Pollution Act). Such developments may be required to update facilities to meet new market demands or new regulatory standards. Works required are often internal to the operation, have few wider impacts, but are "development" because they constitute engineering operations in, on, over or under land.

Waste Management Licenses are regularly reviewed, and can be revised by SEPA. Revisions may be applied to require site operators to update facilities to meet new market demands or new regulatory standards. Works required are often internal to the facility and have few implications beyond the site. However, because they fall within the definition of "development" they currently require planning permission. As stated in the 2004 research ⁵¹, "this can pose considerable burdens on applicants and planning authorities having to deal with many relatively minor applications with no land use implications, even though their environmental implications should be adequately addressed through the WML process".

For clarity, "waste management operations" should be defined (possible inclusion in Article 2 of the GPDO), and "works ancillary to landfill operations" should be distinguished from "other ancillary waste management operations".

There are local authority concerns about the impact of waste management operations on sites embedded within urban areas and close to residential uses.

Any reforms should focus on the planning issues (amenity, visual impact) separate from the environmental protection / pollution consent regimes operated by SEPA.

Waste management carries a lot of baggage that raises significant concerns among the general public, whatever the scale of the operation. At present all waste related development requires public scrutiny through planning consent. This would change if permitted development was introduced.

SESA, the industry representative body, argue that there are operations equivalent to permitted development in other development categories (eg industrial development, ancillary mining/minerals development) that, if extended to waste management, would help reduce burdens on the waste industry. These include: hard standings, weighbridges, small buildings enclosing plant/machinery, boundary fences etc, often required as a result of new environmental standards or changes in market conditions.

2. What should be the threshold for operational development as PD ?

Thresholds might be transferable from comparable Parts of the Order, eg temporary buildings (Class 14), industrial development (Class 18), works ancillary to mining operations (Part 16) or mineral exploration (Part 15). This would include hard standings, weighbridges, boundary fences, small buildings for plant and/or machinery, limited extensions to existing buildings. These are relatively straightforward to define. More problematic might be such matters as stockpiles, boreholes, and engineering bunds.

Similarly, thresholds could be applied consistent with equivalent Classes, and include limitations, such as maximum height, change in external appearance of the site, and proximity to residential uses.

There is scope to permit small scale structures such as buildings, plant and machinery, subject to maximum dimensions, and to land fill operations subject to maximum height of land raising. Clear development thresholds would obviate the need for prior approval, in line with our other recommendations for prior approval in general.

3. What would be "minor" development associated with a waste management license, or variation to a license, in terms of its environmental impact ?

The focus should be on small scale amendments to existing authorized developments, in the interests of improving environmental standards and efficient operation.

4. Should waste management be treated in the same way as PD Parts 4 (temp buildings and uses), 8 (Industrial and Warehouse Development), 15 (Mineral Exploration), 16 (Waste Tipping at a Mine) Development Ancillary to Mining Operations ?

There is scope to define waste management PD by reference to equivalent PD in broadly equivalent Parts of the GPDO, or exploring industry ( SESA) suggestions. The waste management industry is not seeking special treatment, but merely parity of treatment with industrial and minerals operations.

5. To what extent would SESAs proposals for new PDR be appropriate ?

There was scope to identify appropriate PD for operations/structures/buildings ancillary to waste management, subject to appropriate limits and exclusions.

Recommendations

There should be PDR for:

• Development ancillary to landfill/land raising operations, required in connection with authorized waste operations at that site, and contained within the authorized site boundary, comprising:

Operations for the erection, extension, installation, rearrangement, repair or replacement, on land used for the final management of waste by landfilling or land raising, of any:

Subject to:

• Development ancillary to other waste management operations, within an authorized site, other than a landfill or land raising site, comprising:

Subject to:

• "waste management operations" should be defined in Article 2 of the GPDO.

Justification

Establishing minor permitted development for waste management operations can assist the implementation of the national waste strategy, and the efficiency of planning authorities, by removing the need for planning permission for minor and inconsequential development required for the purpose of a site regulated by a waste management or other license from SEPA. Permitted development would apply only to small scale and non controversial developments.

There is scope for a new Part of the GPDO, dedicated to minor development associated with waste management operations, and which could be modeled on relevant current classes, such as Part 8 (industrial and warehouse development) or Part 15 (mineral exploration).

Where environmental issues are significant, EIA Regulations would apply, since these remove PDR from developments that meet criteria for EIA (eg requirements of the Landfill Directive could require engineering works within existing sites to create cells for certain wastes).

Permitted development would provide applicants with greater certainty about the need for approval for such developments and reduce costs by reducing the number of consents required. It also reduces the burden on planning authorities by avoiding the need for minor planning applications whose environmental implications can be adequately addressed through environmental protection legislation.

Minor amendments to buildings, plant, machinery etc may arise as a consequence of amendments to waste management or other environmental permits, often as a consequence of higher environmental standards. Provided permitted developments relate to authorized sites, are well defined, and there are minimum proximity dimensions to the nearest residential properties (acknowledging that many waste management sites are within urban areas), then burdens on the waste management industry and planning authorities can be reduced at little or no risk to amenity.

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