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SCOTTISH EXECUTIVE CENTRAL RESEARCH UNIT

Development Department Research ProgrammeResearch Findings No. 140

Review of Old Mineral Permissions

Alan Pollock
David Kirk & Associates

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Main Findings

• The statutory requirements for the review of old mineral permissions have resulted in significant progress towards ensuring that such permissions have been updated to reflect current expectations for protection of the environment consistent with best working practices
• The current statutory provisions have been effective in addressing problems inherent in the initial arrangements for review established in the Town and Country Planning (Minerals Act) 1981
• The review process has been the subject of considerable delay, which varies significantly between different planning authorities across Scotland. Although the scale of the review task varies significantly between planning authorities, there is no relationship between progress in completion of the review and the workload requirement. The principal factors influencing progress are the complexity of individual cases, staff resources and relative priorities within planning authorities
• The effectiveness of the review procedures appear to centre on the opportunity provided for dialogue and reappraisal of the working arrangements and planning circumstances relevant to each site.

Background

As a form of development, minerals extraction is distinguished by the length of time over which working of a site may continue. As such, the relevance of the original conditions imposed on the planning permission may require reconsideration to ensure that they meet current standards and expectations for protection of the environment.

A further issue is that most old mineral permissions failed to make adequate provision for the restoration of sites following the cessation of extraction.

Although the problems associated with old mineral permissions were first identified in the Stevens Report (1976), it was generally accepted that initial legislative provisions for review failed to achieve their intended purpose.

Methodology

The study involved the collection and analysis of both quantitative and qualitative data derived from:

• A questionnaire survey of all planning authorities
• Case studies of both individual site review cases and approaches to the review adopted by planning authorities
• Structured interviews with selected planning authorities and representatives of the minerals industry
• Selective review of planning registers

Current Statutory Requirements

The Planning and Compensation Act 1991 introduced requirements for the upgrading of mineral permissions granted under Interim Development Order provisions between 1943 to 1948. Failure to register an IDO permission within a specified period of time resulted in the loss of the consent.

The Environment Act 1995 introduced a requirement for the review of old mineral permissions granted in the period 1948 to 1982. These provisions were subsequently consolidated in section 74 and Schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997.

The current review process is based on a distinction drawn between active and dormant mineral workings. For dormant sites, no minerals development may be lawfully carried out until such time as a new scheme of conditions has been submitted to, and approved by the planning authority. For active sites the review was progressed in 2 successive three-year phases.

• Phase 1 sites are those where the predominant permission was granted between 1948 and 1969, but also includes sites within various designated areas of scenic or nature conservation interest
• Phase 2 sites are those where the predominant permission was granted between 1969 and 1982

By April 1997, planning authorities were required to publish a list of all 3 categories of sites, with dates established for the Phase 1 site submissions of new schemes of conditions. By January 2000, Phase 2 site submission arrangements were established in a second published list. In addition, provisions are established for the periodic review of all minerals permissions every 15 years.

Failure to submit an application for the approval of new conditions by the specified date results in the relevant planning permission ceasing to have effect, placing a strong incentive on mineral operators/ owners to instigate the review process. Failure on the part of a planning authority to issue a decision within 3 months (which may be extended by agreement) results in the deemed approval of the conditions as submitted. Any new condition that places restrictions on the working rights of a site creates a compensation liability on the planning authority.

Generally, the principal areas for which new conditions will typically be required are:

• Access, traffic and protection of public roads
• Site working programme and arrangements
• Noise
• Hours of working
• Site restoration, aftercare and afteruse

Key Findings

The study established that for review purposes throughout Scotland, there are:

• 104 Phase 1 sites
• 63 Phase 2 sites
• 234 dormant sites
• 7 IDO cases

Thirty-six minerals permissions lapsed as a consequence of the failure to submit an application for the approval of new conditions

There are significant variations between planning authorities in the number of cases subject to review, with corresponding workload implications.

Although considerable progress has been made in the review process, significant delays have been incurred in the issue of decisions by many authorities.

The review process has often required a more comprehensive and often more complex reappraisal of site workings than might have been anticipated.

Major variations exist between planning authorities in the application of Environmental Impact Assessment to review cases.

There has been remarkably little use made of Section 75 Agreements in review cases.

Approximately 30% of planning authorities have arrangements in place for meeting the statutory requirements for periodic reviews.

Recommendations

• Review of Schedules 9 & 10 of the Town and Country Planning (Scotland) Act 1997
• Amendment to the 1999 EIA Regulations to require screening of all review cases
• Revision to Circular 34/ 1996 to reflect the changing nature of the review requirements
• Introduction of a separate minerals register for review purposes
• Where planning authorities do not employ staff with appropriate minerals expertise, outsourcing of review work should be considered
• Mineral operators should keep planning authorities informed of any changes affecting a working site insofar as it may be material to future reviews
• Consideration should be given to greater use of planning agreements as a means of resolving situations that otherwise may inhibit progress towards mutually acceptable outcomes in review cases
• Regular informal dialogue between mineral operators and planning authorities is encouraged and is likely to enhance efficiency in the review process