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120. Planning authorities retain their powers to make orders revoking, modifying, discontinuing, prohibiting, or suspending mineral working. Where such orders are made, compensation is payable but may be abated by the amounts set out in The Town and Country Planning (Compensation for Restrictions on Mineral Working) (Scotland) Regulations 1987 (SI 1987 No 433) as amended by The Coal Industry Act 1994 (Consequential Modifications of Subordinate Legislation) Order 1994 (SI 1994 No.2567). In due course, the Government intends to bring forward new regulations, which would be subject to affirmative resolution in both Houses, to ensure that the compensation entitlement following a revocation, modification or discontinuance order is in line with that for periodic reviews - i.e. there would be no compensation for orders which imposed restoration or aftercare conditions, nor for orders which imposed conditions the effect of which did not restrict working rights. Unabated compensation would be payable in respect of revocation, modification or discontinuance orders which imposed conditions, other than restoration or aftercare conditions, where the effect of the restriction imposed by the order would be to restrict working rights. For prohibition and suspension orders, the Government intends to retain the existing arrangements - i.e. provided that "mineral compensation requirements are satisfied" the amount of compensation that would be payable by planning authorities for loss or damage occasioned by complying with the terms of such an order would be reduced by a prescribed sum (currently £5,000).
121. The Government decided that valid planning permissions should not be revoked without compensation, but Parliament expressly provided power for planning authorities to make orders prohibiting the resumption of mineral working or depositing of mineral waste where development has permanently ceased. Prohibition orders therefore provide the due process for extinguishing planning permissions in such circumstances and the Government believes that wider use should be made of these powers in respect of sites which have not been worked to any substantial extent since 1982 and where resumption of development is unlikely. Planning authorities may therefore wish to use the opportunity of preparing their first list of sites to consider whether any sites they intend to classify as dormant in the first list of sites are suitable candidates for orders prohibiting the resumption of mineral working or the depositing of mineral waste. Where they do identify such candidates they may wish to use the requirement to notify land and mineral owners of site classification as the opportunity to carry out the special consultations required by Section 167A of the 1972 Act if the modified compensation arrangements are to apply - i.e. that the value of any mineral unable to be worked as a result of the order is to be excluded from any assessment of compensation and any compensation is abated by a prescribed sum of £5,000.
122. In deciding whether to make a prohibition order, the planning authority must be satisfied that development consisting of the winning and working of minerals or involving the depositing of mineral waste has permanently ceased (Section 49A of the 1972 Act). They may only assume that development has permanently ceased if:
(a) no such development has been carried out to any substantial extent anywhere in, on or under the site of which the land forms part for a period of at least 2 years (in practice this should include all sites classified as dormant in the first list); and
(b) it appears to them, on the evidence available to them at the time when they make the order, that resumption of such development to any substantial extent in, on or under the land is unlikely.
123. In determining whether resumption of development to any substantial extent is unlikely, planning authorities must take account of all considerations material to that decision. These would include the quality and quantity of workable mineral and whether there is a real and genuine intention to work the site. Given that dormant Phase I and Phase II sites may only lawfully recommence working once full modern conditions have been approved, it is material to consider whether such a site is capable of being worked to full modern conditions now or in the foreseeable future. In considering whether or not to confirm such orders, the Secretary of State will similarly wish to satisfy himself on these and all other material considerations.
124. All sites which are wholly or partly within SSSIs are included as Phase I sites for initial reviews. However the preparation of schemes of conditions will need to adopt different approaches, depending on whether the SSSI has been notified for its biological or geological (earth science) interest. In the case of biological SSSIs, applicants should seek to preserve the interest in-situ by voluntarily offering limits on extractive or tipping areas. Where this is not practicable, schemes should make provision for safeguarding the interest by means such as careful transplanting of a habitat as part of restoration and aftercare. Geological SSSIs will, in many cases, have been notified because past mineral extraction has revealed sections of geological importance. Schemes of conditions for such sites may be able to safeguard existing SSSI sections where this would not sterilise permitted mineral reserves, or to create an equivalent geological section at the final boundary of the excavation area. Applicants should consult Scottish Natural Heritage in preparation of schemes for SSSI sites.
125. A few Phase I sites which are, or include, SSSIs may be or become European sites i.e. Special Protection Areas (SPAs) under the EC Directive on the Conservation of Wild Birds (the Birds Directive), or Special Areas of Conservation (SACs) to be designated under the EC Directive on the Conservation of Natural Habitats and of Wild Fauna and Flora (the Habitats Directive). As soon as an area becomes a European site, any extant permissions for development (of any type) which have not been implemented or have not been completely implemented, must be reviewed by the planning authority under the Conservation (Natural Habitats etc.) Regulations 1994 (the "Habitats Regulations"). Such a review will need to ascertain whether implementation of any permission which is likely to have a significant effect on the site, and is not directly connected with or necessary to its management, would adversely affect its integrity. If the integrity of the site would be adversely affected, and if the permission does not fulfil the conditions under which a new development proposal affecting the site would be approved, then the authority must take appropriate action to remove the potential for harm, unless there is no likelihood of the development being carried out or continued. Advice on the Habitats Regulations is contained in SOEnD Circular 6/1995. The planning authority must seek the advice of Scottish Natural Heritage on individual cases.
126. Reviews of permissions under the Habitats Regulations are legislatively separate from old mineral permission reviews, and have different purposes. However there may be some practical interaction of the 2 review requirements at site level, including the relative timing of the reviews. Whilst no definitive interpretation can be given, the following advice should be taken into account for minerals reviews.
127. There is a major procedural difference between the 2 requirements for reviews. Under the Habitats Regulations planning authorities have to undertake reviews for sites that have already been classified "as soon as reasonably practical", whereas for mineral reviews it is land and mineral owners who have to submit schemes of conditions for the approval of planning authorities within the timescales laid down in the 1995 Act.
128. If a review of an old mineral planning permission has already been carried out under the Habitats Regulations, and a satisfactory planning agreement has been entered into or a modification order made, which would safeguard the integrity of the SPA or SAC, this may be a basis for the planning authority agreeing to postpone the initial minerals review.
129. Where Habitats Regulations reviews have not yet taken place, planning authorities should take steps to do so as soon as possible. Fifty-nine SPAs have been classified in Scotland as at 1 October 1996 and the Government is aiming to classify a minimum of 20 new SPAs per until the programme is complete. As new SPAs are classified the duty to review under the Habitats Regulations will arise. If reviews under both legislative provisions have to take place in parallel, which may occasionally happen, the different objectives of the reviews must be clearly identified. It is recommended that an informal meeting between the planning authority, the mineral or land owner, and Scottish Natural Heritage should be held at an early stage to consider how best to deal with the interactions for the decision making processes.
130. In a number of areas potential SPAs have been identified that are expected to be classified in due course. Planning authorities should give priority, wherever possible and reasonable within their lists of active Phase I sites, to reviewing mineral sites affecting these areas. Early dates should be specified within the statutory timescales by which the land and minerals operators must submit their applications for approval of new conditions. This will enable planning authorities, in consultation with Scottish Natural Heritage and with the land and mineral owners, to meet the requirements that will arise under the Habitats Regulations when the area becomes a European site. Land and mineral owners will then be able to take account of potential SPAs in preparing their schemes of conditions for approval by the planning authority including how far they will be able to protect such areas to safeguard their conservation objectives.
131. Similarly, in a number of areas, candidate Special Areas Conservation (SACs) have been notified. These are areas which have been subject to public consultation and submitted to the European Commission. They are expected to be adopted by the Commission as sites of Community importance, and hence will become European sites, although the timing of this is uncertain and not entirely in the Department's hands. Again, planning authorities should give priority in Phase I to active mineral sites affecting these areas for the same reasons as potential SPAs. In drawing up and considering schemes to be submitted under the 1995 Act requirements there might be administrative advantages to authorities and to land and mineral owners to examine at the same time considerations which would apply under the Habitats Regulations review in advance of the formal statutory duty to do so.
132. The above advice applies primarily to active Phase I mineral sites which are wholly or partly within existing SSSIs. The Habitats Regulations require authorities to review any permissions which are likely to affect European sites, irrespective of whether they are inside the boundaries of such sites. The 1995 Act provisions will not therefore take account of some European sites until Phase II or periodic reviews. In these circumstances, it is likely that the review duty under the Habitats Regulations will arise first. The above advice is unlikely to cover all circumstances, and judgement about timing will undoubtedly vary from site to site. The Department is unable to advise on the merits or otherwise of individual cases because this would prejudice the Secretary of State's position should the case come before him on appeal.
133. Peat extraction sites which are wholly or partly within SSSIs fall to be reviewed in the first phase of initial reviews. The industry have already undertaken that in bringing forward new schemes of conditions they will have regard to safeguarding any adjacent areas which are of nature conservation value; the phasing of remaining extraction; and proposals for rehabilitation, wherever practicable, to provide future areas for nature conservation. The Government welcomes this constructive approach to a difficult problem.
134. Underground coal mines which derive their planning permission from the General Permitted Development Order are not subject to initial or periodic review under the arrangements introduced by the 1995 Act - separate provision for this will be made within the GPDO itself in due course. However, opencast coal mines and underground coal mines which have the benefit of a specific (or deemed) planning permission, or permissions, will be subject to periodic review - and to initial review if the relevant planning permissions bring the site within the definition of a Phase I or Phase II site.
135. Most opencast coal permissions will have been granted since 1982 and will not therefore be subject to an initial review but should already be subject to full modern conditions. In reviewing those underground coal mines which do fall to be treated as Phase I or Phase II sites for the purposes of an initial review, planning authorities should bear in mind that the object is not to restrict working rights but to ensure that the ancillary surface development is subject to proper conditions and that the environment is protected. Many aspects of surface ancillary development will already be subject to authorisations under the Environmental Protection Act 1990 and new planning conditions should not seek to duplicate these. However, where the operation of surface ancillary development is not covered by EPA authorisations, and particularly where there are no adequate restoration and aftercare conditions in respect of the surface development, operators and planning authorities should ensure that appropriate conditions are attached to the permission for winning and working. The general advice on the imposition of conditions controlling or restricting ancillary mining development applies.
136. Periodic reviews apply to all mining sites, including IDO permissions, but excluding permissions granted by the old GDO - separate provision will be made for these in the General Permitted Development Order itself.
Periodic reviews will take place every 15 years from the date of either a previous review, or, if no review has taken place, from the date of the latest mineral permission relating to the site.
Planning authorities must give at least 12 months advance notice to land and mineral owners of the date by which an application for the approval of new conditions must be submitted to the planning authority.
If no scheme of conditions is submitted by the specified date the permissions will cease to have effect.
137. Paragraph 1 of Schedule 14 places a statutory duty on planning authorities to cause periodic reviews to be carried out of the mineral permissions relating to a mining site. "Mining site" differs from the "mineral site" used for initial reviews in that it is defined by reference to mineral permissions rather than "relevant planning permission". A "mineral permission" is defined in Paragraph 2(1) as a permission, other than a planning permission granted by the GPDO, for minerals development. In this context "minerals development" means development consisting of the winning and working of minerals or involving the depositing of mineral waste. In other words, a "mining site" includes IDO permissions whereas a "mineral site" does not. In addition, there is no distinction between active and dormant "mining sites" for the purposes of periodic reviews although dormant Phase I and Phase II mineral sites will not be subject to their first periodic review until after new conditions have been determined under an initial review.
138. As with initial reviews, a mining site for the purposes of periodic review may consist of a single mineral permission or, where the planning authority consider it expedient, the aggregate of two or more mineral permissions. However, in determining whether a site consists of two or more permissions, the planning authority must have regard to the following guidance. In the case of sites which have already been subject to an initial review (i.e. active Phase I and II sites and dormant sites that have been reactivated on full modern conditions) it is expected that the mining site for the purposes of periodic reviews will be the same as that for initial reviews. Where extensions to the initial review site have been granted in the interim, these should be incorporated in the mining site for the purposes of periodic reviews. For sites which have not been subject to an initial review, it should be clear from the planning history of the mineral workings what constitutes a site. Where an IDO permission forms an integral part of the mineral operation, this should be incorporated in the mining site for the purposes of periodic reviews. As with initial reviews, there may also be cases where planning permissions to work the same mineral are severed by some physical barrier - e.g. a road. In such cases, the planning authority should have regard to what constitutes a sensible planning unit bearing in mind that where land covered by a single permission is separated by a physical barrier it is not open to the planning authority to treat it as more than one site.
139. Some mineral operations rely on a number of "satellite" sites serving a central processing facility. Some of these sites may be active, whilst others may be held in reserve to be brought into production as the market dictates or as other sites are worked out. Whether or not such "satellite" sites should be regarded as one mining site or several different mining sites will depend upon factors such as their location, their distance from each other and from the central processing facility, and whether it makes sense to review them all at the same time or separately.
140. There may be some instances where a single minerals operation straddles planning authority boundaries. Legally, planning authorities only have administrative responsibility for land within their administrative area. An old permission straddling more recent boundaries is treated as two (or more) permissions, one covering each area as appropriate, by virtue of Section 181(3) of the Local Government (Scotland) Act 1994 c.39. Accordingly, the development will have to be treated as two (or more) sites, but in such cases planning authorities should co-ordinate their approach so that the respective "sites" are reviewed at the same time.
141. Paragraph 3(1) defines the first review date for mining sites where the mineral permissions for that site include an IDO permission as:
(a) the date 15 years after the date when new conditions have been finally
determined in respect of the site under Schedule 2 to the 1991 Act; or
(b) where there are two or more IDO permissions relating to the site, 15
years after whichever has the latest date of final determination.
142. Paragraph 3(2) defines the first review date for a mining site which is a dormant site or an active Phase I or II site for the purposes of Schedule 13 to the Environment Act 1995 as the date 15 years after new conditions have been finally determined in relation to such a site under an initial review under that Schedule.
143. Paragraph 3(3) defines the first review date for mining sites which are not dormant or active Phase I or II sites or sites to which an IDO permission relates. In such cases, the first review date is 15 years after the date of the most recent mineral permission relating to the site. However, paragraph 3(4) provides that where the most recent permission relates to part only of the site the planning authority may, for the purposes of ascertaining the first review date, treat that permission as having been granted at the same time as the earlier permissions relating to the site. The intention is that minor mineral permissions granted in relation to a mining site should not necessarily defer the first periodic review of all the substantive mineral permissions relating to that site. Planning authorities should only exercise this discretion therefore where the most recent permission is a minor permission which has not significantly altered the terms and conditions of the earlier permissions relating to the site.
144. Paragraph 3(6) provides that in the case of a mining site where a revocation, modification or discontinuance order has been made, the first review date is 15 years after the date the order, or the latest order relating to that site, took effect.
145. Paragraph 3(7) provides that in the case of a mining site for which one or more first periodic review dates may be ascertained under the previous paragraphs, the first review date shall be the latest of those dates.
146. Planning authorities must serve written notice on owners of land or minerals comprised in a mining site of the first periodic review date, at least 12 months before that date. The notice must:
(a) indicate that the land or mineral is included in a mining site and specify that site;
(b) identify the mineral permissions relating to the site;
(c) state the date by which an application for determination of the conditions must be made (and that the mineral permissions identified in the notice will cease to have effect if no application is made by that date);
(d) explain the right to apply for postponement of that date and the date by which such an application must be made.
A suggested form of notice is at Annex J.
147. Where a planning authority has served notice in respect of a mining site and no application for determination of conditions has been made by 8 weeks before the date specified in the notice, the planning authority must serve a written reminder on the land and mineral owners at least 4 weeks before the specified date. The reminder must:
(a) indicate the mining site in question;
(b) identify the mineral permissions relating to the site;
(c) state the date by which an application for determination of the conditions
must be made; and,
(d) explain that the mineral permissions identified in the notice will cease
to have effect if no application is made by that date.
A suggested form of reminder notice is at Annex K.
148. Where a planning authority is unable to identify the names or addresses of owners of land or minerals comprised in a site for the purpose of serving written notices or reminders, they shall instead post a copy of the notice or reminder by firmly affixing it to one or more conspicuous objects on the land in question. Where there are no or insufficient conspicuous objects on the land, the planning authority may affix the notice or reminder to a post driven into or erected on the land.
149. A site notice must be displayed in such a way as to be easily visible and legible; must be posted subject to the same timetable as for written notices and reminders; and, must be left in position for at least 21 days from the date when it is first displayed.
150. A land or mineral owner of a mining site may apply to the planning authority for postponement of the date specified in the notice for the submission of new conditions. Applications must be made within 3 months of the date the notice was served.
151. The purpose of the facility for postponement is to avoid unnecessary review where the existing planning conditions are judged to be satisfactory. In such cases, postponement should be for a reasonable number of years - e.g. 10 to 15 years. Applications for postponement should not be made simply to seek a small extension of time for the submission of new schemes of conditions: such minor extensions can be agreed in writing between the applicant and the planning authority without the formal procedure of a postponement application.
152. An application for postponement must set out the existing planning conditions relating to the site; set out the reasons why the applicant considers these conditions to be satisfactory; and, specify the date which the applicant wishes to be substituted for the first periodic review date. There is no statutory requirement for an application to be accompanied by an appropriate certificate but applicants are advised to use the suggested forms of modified notices and certificates set out in Annex C.
153. If the planning authority do not consider the existing conditions satisfactory they must refuse the application. If the planning authority do consider the existing conditions satisfactory they must grant the application, but may specify a different date from that proposed by the applicant. The planning authority must notify the applicant of their determination in writing.
154. Where the planning authority have not given notice of their determination within 3 months (or such longer period as they may have agreed in writing with the applicant) of receipt of the application, the application is deemed to be approved.
155. Any person who is an owner of land or has an interest in any relevant mineral which is or forms part of a mining site may apply to the planning authority to determine the conditions to which the mineral permissions relating to that site are to be subject. Applications must be in writing and must:
(a) identify the site and state that the application is made in connection
with the first periodic review;
(b) specify the land or minerals of which the applicant is an owner;
(c) identify the minerals permissions relating to the site;
(d) identify and give an address for any other person known to the applicant
to be an owner of land or person with an interest in any minerals in the site;
(e) set out the applicant's proposed conditions; and,
(f) be accompanied by the appropriate certificates.
A standard application form is at Annex F.
156. The appropriate certificates are those, modified as necessary, that would be required under Sections 23 and 24 of the 1972 Act as if the application for determination of conditions were an application for planning permission for minerals development (i.e. that all persons known to the applicant to have an interest in the land or minerals to which the application relates and all persons holding an interest in neighbouring land have been notified of the application). The requirements in relation to notification of owners and neighbours and provision of certificates are set out in Articles 8 and 9 of the Town and Country Planning (General Development Procedure) (Scotland) Order 1992 (SI 1992 No 224) as amended by SI 1994 No 3293. Suggested forms of modified notices and certificates are set out at Annex C.
157. The planning authority should acknowledge receipt of the application in writing as soon as practicable and should enter details of the application in the Planning Register. There is no statutory requirement on applicants to publicise an application but they should do so as if it were an application for planning permission using an appropriately modified form of the notice at Annex C. This means that it must be advertised in a local newspaper and publicly displayed in at least one place in the district of the planning authority.
158. On receipt of a valid application the planning authority must determine the conditions to which each mineral permission is to be subject. The conditions determined may include any conditions which may be imposed on the grant of planning permission for minerals development and may be in addition to, or in substitution for, any existing conditions.
159. If the planning authority have not given written notice of their determination within 3 months (or such longer period as may be agreed in writing between the planning authority and the applicant) of receipt of the application, the application and the conditions submitted therein are deemed to be approved from that date.
160. Where the planning authority are unable to determine an application unless the applicant provides further information, they may within one month of receipt of the application notify the applicant and specify the further details they require. In such a case, the 3 month period for determination of the application does not start to run until the planning authority have received all the further details specified in the notice. The further details required may include information, plans or drawings or evidence verifying information or details already supplied. Planning authorities should require further details only where necessary to determine the application and should specify clearly the further details required and by what date. Applicants should make every effort to provide all further details requested as speedily as possible.
161. New conditions do not have effect until the application is finally determined - i.e. all proceedings on the application, including appeals to the Secretary of State and the Court of Session have been determined, and the time period for any further appeal has expired.
162. Once an application has been finally determined, the planning authority should enter details of the determination in Part II of the Planning Register. At the same time the copy of the application should be removed from Part I of the register.
163. Where no application for determination of conditions has been made to the planning authority by the first review date (or such later date as the planning authority may agree in writing), each mineral permission relating to that site and identified in the notice will cease to have effect, except in so far as it imposes a restoration and aftercare condition, on the day following that date.
164. Where the planning authority determine conditions different from those submitted by the applicant, the applicant may appeal to the Secretary of State. An appeal must be made by giving notice to the Secretary of State within 6 months of the planning authority's notice of determination. Suggested forms of notice are set out in Annex H and model appeal forms at Annex I.
165. The Secretary of State may give directions requiring applications for the determination of conditions to be referred to him rather than being determined by the planning authority. If he does so, the relevant provisions of the Schedule are applied with any necessary modifications, including the planning authority's and appellant's right to a hearing before he makes his determination.
166. Because it is open to any person who is an owner or tenant of any part of the site (or who holds an interest in any mineral in the site), to apply for postponement of a review date or for new conditions to be determined, it is possible for there to be more than one application in respect of the same site. The 1995 Act provides that each eligible person may make only one application for postponement or the determination of conditions. However, if there is more than one person eligible to apply and each makes a separate application, the planning authority must treat all the applications as a single application served on the date on which the latest application was made, and must notify each applicant of receipt of the applications and their determination accordingly. Where the planning authority have already determined an application, then no further applications may be made by any person.
167. Applicants are strongly advised therefore to co-ordinate their approach with any other persons eligible to apply for postponement of a review date or determination of conditions in respect of the same site and to discuss the position with the planning authority with a view to submitting a single application covering all their respective interests.
168. Second and subsequent periodic reviews must be carried out 15 years after the date of determination of new conditions under a first or previous periodic review as appropriate. The provisions relating to first periodic reviews, including the provision to apply for postponement of review dates, apply as if the appropriate reference to second or subsequent periodic review were substituted for first periodic review.
169. Where a planning authority determines conditions different from those submitted by the applicant and the effect of the new conditions, other than restoration or aftercare conditions, as compared with the effect of the existing conditions is to impose a restriction on working rights, then Parts VIII and XI of the 1972 Act have effect as if a modification order had been made and confirmed under Section 42 of that Act imposing those restrictions. Land and mineral owners whose interests have been adversely affected by the restrictions imposed by the deemed modification order will be entitled to claim compensation from the planning authority under Section 153 of the 1972 Act unmodified by Section 167A of that Act or any regulations made thereunder.
170. Paragraph 13(3) provides that working rights are restricted in respect of a mining site if any of the following is restricted or reduced in respect of the mining site in question:-
(a) the size of the area which may be used for the winning and working of
minerals or the depositing of mineral waste;
(b) the depth to which any operations for the winning and working of minerals
may extend;
(c) the height of any deposit of mineral waste;
(d) the rate at which any particular mineral may be extracted;
(e) the rate at which any particular mineral waste may be deposited;
(f) the period at the expiry of which any winning or working of minerals
or the depositing of mineral waste is to cease; or
(g) the total quantity of minerals which may be extracted from, or of mineral
waste which may be deposited on, the site.
171. The purpose of periodic reviews is to ensure that the conditions attached to mineral permissions do not become outdated with the passage of time. Periodic reviews apply to all mining sites, including sites with IDO permissions, except for mineral permissions granted by the GPDO.
172. The approach to be adopted for the determination of conditions following periodic reviews broadly follows that for initial reviews with 2 main differences. First, there is no distinction between periodic review sites that are working and those that are not. Secondly, where planning authorities determine conditions different from those submitted by the applicant; and the effect of those conditions, other than restoration or aftercare conditions, is to restrict working rights further than before the review, a liability for compensation will always arise. This is because periodic reviews will be dealing with sites where the predominant planning permissions have been granted since 1982 and sites which have already been updated following an initial review or through the IDO procedures introduced by the 1991 Act. There should not therefore be any need for further changes to working rights and the Government's view is that conditions, other than restoration and aftercare conditions, which would restrict working rights should not be imposed except in exceptional circumstances. Subject to these 2 points, the advice on the principles to be applied to the preparation of schemes and conditions and to their consideration by the planning authority for initial reviews applies equally to periodic reviews.
173. The Secretary of State places considerable importance on the successful review of old mineral planning permissions both under the Environment Act 1995 for permissions granted between 1948 and 1982, and under the Planning and Compensation Act 1991 for permissions granted before 1948 under IDO. Arrangements are being put in place to monitor the progress of these reviews.
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