Circular 34/1996
A. INTRODUCTION
1. The Environment Act 1995 introduces new requirements for an initial review and updating of old mineral planning permissions and the periodic review of all mineral permissions thereafter. The requirements will come into force in Scotland on 1 January 1997. This Circular gives advice to planning authorities and the minerals industry on the statutory procedures to be followed and the approach to be adopted for the preparation and consideration of updated planning conditions in the review process. The Secretary of State attaches importance to the effective and speedy implementation of the procedures and policies contained in this Circular.
2. The environmental issues relating to old mining permissions are ones which have concerned the Government for a number of years. It has long been recognised that mineral working is different from other forms of development. It can only take place where minerals are found to exist; it is a temporary use of land, although sometimes lasting for many years, and consideration needs to be given ensuring restoration of the land to a beneficial after-use. The operation of the site can significantly change its impact over its lifetime and the standards expected by society can also change. There is therefore a need for regular review so as to ensure that modem standards are met.
3. Following the Report of the Stevens Committee (1976), the Government reflected this need for review in the Town and Country Planning (Minerals) Act 1981 ("the 1981 Act" - which amended the Town and Country Planning (Scotland) Act 1972 ("the 1972 Act")). This placed a duty on planning authorities to review periodically mineral sites in their area, and to make such orders as they considered necessary for the updating of the planning permissions. The Act, and associated regulations, provided that any compensation entitlement following such orders should be reduced provided certain requirements were met. In this way it was intended that the industry should bear reasonable additional costs arising from the modernisation of old mineral planning permissions.
4. The 1981 Act represented a sea change in the approach to minerals planning, but the proposals for review and updating have not worked as well as intended. The Government therefore undertook in the Environment White Paper (1990) to review the operation of the legislation and the associated compensation arrangements to see how they could be improved.
5. The first reform steps were taken in the Planning and Compensation Act 1991 ("the 1991 Act") which dealt with the oldest extant mineral consents, Interim Development Order ("IDO") permissions, referred to in the 1991 Act as "old mining permissions". These permissions, originally granted between 1943 and 1948, have been preserved by successive planning Acts as valid planning permissions in respect of development which had not been carried out by 1 July 1948. The 1991 Act required holders of IDO permissions to register them with the planning authority and, subsequently to submit a scheme of operating and restoration conditions for the authority's approval. There was no entitlement to compensation for the cost of complying with the new conditions, but the Act provides a right of appeal to the Secretary of State. At that time the Government made it clear that for working sites a distinction should be drawn between conditions that dealt with the environmental and amenity aspects of working the site, which should not affect asset value, and conditions that would fundamentally affect the economic structure of the operation.
6. Having provided for the updating of IDO permissions, it was essential to tackle the review and updating of permissions granted in the 1950s, 60s and 70s both to protect the environment and amenity, and to provide equal treatment between sites and mineral operators. It was also necessary to provide for the future periodic review of all mineral permissions thereafter. Section 96 and Schedules 13 and 14 of the Environment Act 1995 ("the 1995 Act"), which will come into force in Scotland on 1 January 1997 make provision for this.
7. Section 96 of the 1995 Act gives effect to Schedules 13 and 14. Schedule 13 provides for an initial review and updating of mineral sites where the predominant mineral permission, or permissions, relating to the site was granted before 22 February 1982. Schedule 14 provides for the periodic review of all mining sites. Section 96(3) provides that the provisions of both Schedules have effect as if they were included in Part III of the 1972 Act. Section 96(4) repeals Section 251A of the 1972 Act (Reviews by planning authorities).
8. The provisions of Schedule 13 do not apply to IDO permissions ("old mining permissions") as defined in Section 49H of the 1972 Act, (as inserted by Sections 52 of the planning and Compensation Act 1991) because these are already subject to a separate initial review under the provisions of the 1991 Act (see SOEnD circulars 2/1992 and 26/1992).
9. Neither the provisions of Schedule 13 nor those of Schedule 14 apply to planning permissions granted by the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 (SI 1992 No 223) (GPDO) for the winning and working of minerals or the depositing of mineral waste. Section 96(5) provides an enabling power to make similar provision for initial and periodic reviews within the GPDO itself.
10. The 1995 Act includes provisions for the establishment of The Scottish Environment Protection Agency (SEPA), which brings together the functions of HM Industrial Pollution Inspectorate, the River Purification Authorities and district and island councils in respect of waste regulation and certain air pollution controls. It took over these functions on 1 April 1996. Any reference in this circular to these functions, and their relevance to initial reviews, should therefore take account of the setting up of the Agency.
11. On 1 April 1996 local government reorganisation in Scotland involving the creation of unitary authorities came into effect. From that date the new authorities as planning authorities assumed the responsibilities, described in this circular, of the former planning authorities.
B. INITIAL REVIEWS
Key Points
12. The requirements for an initial review apply to sites where the predominant minerals permission(s) was granted before 22 February 1982.
A distinction is made between "dormant" sites (see paragraph 25) and "active" sites. No minerals development may lawfully be carried out at dormant sites until a new scheme of conditions has been submitted to, and approved by, the planning authority.
Active sites will be reviewed in 2 successive phases, each of 3 years. Phase I will deal with active sites where the predominant minerals permission(s) was granted after 30 June 1948 and before 8 December 1969.
Phase II will deal with active sites where the predominant permission(s) was granted after 7 December 1969 and before 22 February 1982.
However, all initial review sites which are wholly, or partly, within National Scenic Areas, Natural Heritage Areas or Sites of Special Scientific Interest (SSSIs) on the date that notice of the first list of sites is first published will be treated as Phase I sites.
By 1 April 1997, every planning authority must prepare a list of all dormant and active Phase I and II mineral sites in their area. The list must distinguish between dormant sites and active Phase I sites and active Phase II sites. For active Phase I sites the list must specify the date by which an application for approval of new conditions must be submitted to the planning authority. Planning authorities must advertise that the list has been prepared, and notify land and relevant mineral owners. Where the planning authority cannot identify the owners, they must post a notice on the land.
If a site, or part of a site, is inadvertently omitted from the list, a land or relevant mineral owner has 3 months from the date of first publication of the list to apply to the planning authority for its inclusion, otherwise the planning permissions in respect of the site will cease to have effect.
Land or relevant mineral owners of active Phase I sites must submit new schemes of conditions for the planning authority's approval by the date specified by the authority, or the planning permissions will cease to have effect.
By 1 January 2000, or such later date as may be specified by order, every planning authority must prepare a list of active Phase II sites in their area. The list must specify the date by which an application for approval of new conditions must be submitted to the planning authority. Essentially this means updating the first list of active Phase II sites and incorporating specific dates for the submission of revised conditions. Planning authorities must advertise that the list has been prepared, and notify land and relevant mineral owners. Where the planning authority cannot identify the owners, they must post a notice on the land.
Land or relevant mineral owners of active Phase II sites must submit new schemes of conditions for the planning authority's approval by the date specified by the authority, or the planning permissions will cease to have effect.
It is for land or minerals owners to demonstrate a commitment to raising standards by operating as good environmental neighbours in an environmentally sustainable manner and submitting sensitive schemes of conditions. Equally planning authorities should note the Government's expectation that, in relation to active sites, generally conditions should not be imposed which would prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site.
The Statutory Provisions
Definition of Site (Section 96 and Schedule 13, paragraphs 1 and 2)
13. A "mineral site" is defined by reference to "relevant planning permission". "Relevant planning permission" means any extant planning permission, other than an IDO or GPDO permission, for minerals development which was granted after 30 June 1948. In this context "minerals development" means development consisting of the winning and working of minerals, or involving the depositing of mineral waste. Permissions for development consisting of the winning and working of minerals granted prior to 8 December 1969 and which had not been implemented on or before 8 December 1979 ceased to have effect on 9 December 1979 and should not be taken into account. Similarly, permissions which have been revoked; permissions which are no longer capable of being implemented; permissions subject to a time limit regarding commencement of the development which have not been begun before the time limit expired; permissions subject to a time limit on the duration of the development and that time limit has expired; and, sites which have been worked out and restored, should also be discounted.
14. Where a relevant planning permission authorises the carrying out of development consisting of the winning and working of minerals, but only in respect of any particular mineral or minerals, the permission is not to be taken as relating to any other mineral. In other words, only owners of land within a mineral site or persons with an interest in minerals to which the relevant planning permission relates (referred to throughout this document as "relevant mineral owners" or "persons with an interest in relevant minerals" are entitled to make applications or receive notifications under the provisions of Schedule 13. "Owner" in relation to any land means any person who under the Lands Clauses Acts would be enabled to sell and convey the land to the promoters of an undertaking and includes any person entitled to possession of the land as lessee under a lease the unexpired proportion of which is not less than 7 years.
15. A mineral site may consist of a single relevant planning permission or, where the planning authority consider it expedient, the aggregate of two or more relevant planning permissions. In determining whether a site should consist of a single permission or the aggregate of two or more permissions, planning authorities must have regard to the following guidance.
Aggregation of Two or More Permissions
16. In most cases it should be clear from the planning history of the development what constitutes a site. But there may be cases where planning permissions to work the same mineral are severed by some physical barrier - e.g. a road - and whilst the land to which one permission relates is being worked, the land to which the other permission relates is unworked. In other cases planning conditions may require permissions to be worked and restored in sequence. For some, minerals permissions are also granted to provide long term security of supply for processing plant requiring significant capital investment. In all cases, the planning authority should have regard to what constitutes a sensible planning unit (having regard to the original intent of the planning permission or permissions where known) and whether unworked land comprised in one permission forms part of the mineral reserves for the operation undertaken on the worked land comprised in another permission. Where the unworked land forms part of such reserves, it should be regarded as part and parcel of the same site and should not be separately classified as a dormant site. In any event, 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, although different working programmes and different conditions may be applied to different areas of land within the same site.
Satellite Sites
17. Some mineral operations rely on a number of "satellite" sites serving a central processing facility. These may include dedicated processing operations such as cement works, brickworks and the like requiring long term security of supply and capital investment in plant and machinery. 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 mineral site or several different mineral sites will depend upon factors such as:
their location;
their distance from each other and from the central processing facility;
whether it is clear that the various sites form part of a co-ordinated approach to ensure the sustainability of the processing facility;
the date of the relevant planning permissions (because these will determine in which phase a site falls to be reviewed or whether it is subject to initial review at all); and,
whether it makes sense to review them all at the same time or separately.
However, permissions should not be separated so as to ensure that some land is classified as a dormant site when the sensible approach is to treat the various permissions as a single operation, albeit separated by some distance.
Cross-boundary Sites
18. 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 which now straddles more than one planning authority area as a result of later boundary changes 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. Accordingly, the development will have to be treated as two (or more) sites, and the appropriate area entered as such in each planning authority's list of sites. Planning authorities should co-ordinate their approach so that the respective "sites" are reviewed at the same time and may wish to make use of Section 56 of the Local Government (Scotland) Act 1973 which provides powers for two or more local authorities to make arrangements to discharge any of their functions jointly.
19. There may be cases where, as a result of such apportionment, the different parts of the same operation fall into different Phases - e.g. a site with a planning permission granted between 1969 and 1982 would fall to be reviewed in Phase II, but if part of the operation falls within a National Scenic Area, Natural Heritage area or SSSI, that part would fall to be reviewed in Phase I. In such cases, the authority and operator should seek to review the Phase II part of the operation at the same time as the Phase I part of the operation, unless both parts fall to be classified as "dormant" sites.
20. Mineral sites where either the whole or the greater part of the site is subject to relevant planning permissions granted after 21 February 1982, are neither Phase I nor Phase II sites and are therefore not subject to initial review.
Phase I Sites
21. A Phase I site is a mineral site where either the whole or the greater part of the site is subject to relevant planning permissions granted after 30 June 1948 and before 8 December 1969. Mineral sites wholly or partly within National Scenic Areas, Natural Heritage Areas and SSSI, are Phase I sites where either the whole or the greater part of the land is subject to relevant planning permissions granted after 30 June 1948 and before 22 February 1982.
Phase II Sites
22. A Phase II site is a mineral site where either the whole or the greater part of the site is subject to relevant planning permissions granted after 7 December 1969 and before 22 February 1982.
Greater Part of the Land
23. Where a site comprises two or more planning permissions granted at different times, in deciding whether a site is a Phase 1 or Phase II site, or is neither and therefore not subject to initial review, planning authorities must ascertain whether any parts of a mineral site constitute the greater part of that site for the purpose of the date of the relevant planning permissions. In doing so, planning authorities should discount:
(a) any part of the site to which an IDO permission relates; and,
(b) any part of the site where minerals development has been (but is no longer being) carried out and which, in the opinion of the planning authority, has been satisfactorily restored and, where aftercare conditions were imposed, the planning authority judge that those conditions have been satisfactorily complied with.
24. This means where a working site is subject to progressive restoration, and part of the site has been satisfactorily restored and any aftercare conditions imposed have been satisfactorily complied with, that part of the site should be discounted from the calculation. Land which has been satisfactorily restored etc. will still form part of a mineral site for the purposes of an initial review, but it should be unnecessary to impose revised restoration and aftercare conditions in respect of such land.
Dormant Sites
25. The Act provides that a Phase I or Phase II site is a "dormant" site if no minerals development has been carried out to any substantial extent in, on, or under the site at any time in the period beginning on 22 February 1982 and ending with 6 June 1995. After 1 January 1997 it will not be lawful to carry on working a dormant site until full modem planning conditions have been approved by the planning authority. "Substantial extent" is not defined in the statute and, in the absence of case law, the words have their common or everyday meaning. It will therefore be a matter of fact and degree in each case as to whether development has taken place to a substantial extent in the relevant period, but any development that has taken place after 6 June 1995 should be discounted. "Substantial" clearly means more than token or cosmetic working to keep a permission active and there will need to be evidence of production (or depositing of mineral waste) over a reasonable period of time within the relevant period. Where part of the reserves of the quarry is physically detached from the main operation, if the detached part has planning permission and the main quarry is active, it should not be necessary for there to have been substantial extraction from the detached part for it to be included within the whole operation as an active site.
26. However, there may be borderline cases where an owner or operator might object if a site is classified as dormant. There is no right of appeal against a planning authority's classification. Where therefore it is clear to the planning authority that there could be a difference of opinion as to whether or not a site is to be classified as dormant, they should discuss the issues with the owners and operators of the site and should take into account all material evidence and representations before reaching their decision as to whether to classify the site as dormant in the first list of sites. Equally, owners and operators who are in any doubt as to whether or not their site will be classified as dormant should consult the planning authority at the earliest opportunity. Planning authorities are reminded of their duty to act reasonably on the basis of the factual evidence in reaching their decision. In borderline cases where, after consultation with the land and relevant mineral owners, a planning authority decide to classify a site as dormant against the owners representations they should give reasons for their decision in writing.
Duty to Prepare "First" List of Dormant Sites, and Active Phase I and II Sites (Schedule 13, paragraphs 3 and 5)
27. By 1 April 1997 planning authorities must prepare the first list of mineral sites in their area. A site is only to be included in the list if it is an active Phase I site, an active Phase II site, or a dormant site. The list must specify into which category each site falls and, in respect of each active Phase I site, the date by which an application for determination of new conditions must be made to the planning authority. The date must be not less than 12 months after the list is first advertised and not later than 1 January 2000. Within that period, different dates may be set for different sites. Planning authorities should use this flexibility to give priority to those sites which are of particular concern because of their environmental impact or potential environmental impact and, so far as possible, to achieve an even spread of applications and workload for both authorities and operators over the relevant period. It would also make good administrative sense for planning authorities to prepare a separate list of all sites which are not subject to an initial review. This will help both in ensuring that sites are not inadvertently omitted from the list and identify sites which will be subject to their first periodic review in due course.
Preparation of First List of Sites which must be completed and advertised by notice in one or more local newspapers no later than 1 April 1997.
28. For each site, the list should be accompanied by a site plan and reference sheet showing the extent and dates of the relevant planning permission(s) relating to the site.
29. By 1 April 1997 planning authorities must advertise in 2 successive weeks in one or more local newspapers giving notice that the first list has been prepared and specifying one or more places in the planning authority's area where and when the list can be inspected. The notice of the first list must:
(a) explain the general effect of the classification of the site;
(b) explain the consequences of failure to submit an application for determination of conditions in respect of a Phase I site by the date specified in the list for that site;
(c) explain the effects for any dormant or Phase 1 or Phase II active site not included in the list of its non inclusion and -
(i) set out the right to make an application to the authority for that site to be included in the list and the date by which an application must be made; and,
(ii) state that the landowner, or person with an interest in a relevant mineral, has a right of appeal against the planning authority's determination;
(d) explain that the landowner of, or any person with an interest in a relevant mineral in, a Phase I active site has a right to apply for postponement of the date for submission of an application for determination of conditions and the date by which any application for postponement must be made.
A suggested form of notice is set out in Annex A.
Duty to Prepare "Second" List of Active Phase II Sites (Schedule 13, Paragraphs 4 and 5)
30. By 1 January 2000 planning authorities must prepare a second list of active Phase II sites in their area. Essentially this will be an update of the first list of active Phase II sites. The list must specify in respect of each Phase II site the date by which an application for determination of new conditions must be made. The date must be not less than 12 months after the second list is first advertised and not later than 1 January 2003 or such later date as may be prescribed by order.
31. By 1 January 2000, or such later date as the Secretary of State may prescribe by order, planning authorities must advertise in 2 successive weeks in one or more local newspapers giving notice that the second list has been prepared and specifying one or more places in the planning authority's area where and when the list can be inspected. The notice of the second list must explain the consequences of failure to submit an application for determination of conditions in respect of an active Phase II site by the date specified in the list for that site. A suggested form of notice is set out in Annex B.
Applications for inclusion of Site in First List (Schedule 13, paragraph 6)
32. Any owner of land, or person with an interest in relevant minerals, in a Phase I or Phase II mineral site which should have been included in the first list of sites but was not, may apply to the planning authority for the site to be included. Applications must be made within 3 months of the date on which notice of the first list was first published. If no application is made by that date, the minerals permissions relating to that site will cease to have effect. Applications should state why the applicant considers that the site should be included in the list and be accompanied by supporting evidence.
33. On receipt of an application for inclusion of a site in the first list, if the planning authority considers that the site or part of the site is a dormant or active Phase I or II site, they must accede to the application, otherwise they must refuse it. Where the planning authority grant the application they must amend the list accordingly. In the case of a Phase I site they must specify or amend the date by which an application for determination of conditions must be submitted to the planning authority. A planning authority must notify the applicant in writing of their decision on an application for inclusion of a site in the list and supply the applicant with details of any amendments made to the first or second list as appropriate.
34. Where part of an active Phase I site is added to an existing site on the first list, if the date already specified in the list for submission of new conditions is less than 12 months from the date the planning authority determined the application for inclusion of the site in the list, the specified date must be extended to 12 months from the date they notified the applicant of their determination.
35. Where a new Phase I site is added to the first list, the date for submission of new conditions must be not less than 12 months from the date the planning authority notified the applicant of their determination and not later than 1 January 2000 or 12 months from the date of notification of the determination, whichever is the later.
36. Where the planning authority consider that part of a site, or a new site, is to be included in the list is an active Phase II site, and the second list has already been advertised prior to the planning authority's determination, the date for submission of new conditions must be not less than 12 months from the date the planning authority notified the applicant of their determination and not later than 1 January 2003 (unless varied by order by the Secretary of State) or 12 months from the date of notification of the determination, whichever is the later.
37. Where the planning authority refuse an application for inclusion of a site in the first list, or have not given notice of their determination within 8 weeks (or such longer period as may have been agreed in writing between the planning authority and the applicant) of their receipt of the application, the applicant may appeal to the Secretary of State. Appeals must be made by giving notice to the Secretary of State within 6 months of the date of determination or deemed refusal.
Applications for Postponement of Review Date (Schedule 13, paragraph 7)
38. A land or relevant mineral owner of an active Phase I or Phase II site may apply to the planning authority for postponement of the date specified in the first or second list for the submission of new conditions on the grounds that the existing planning conditions are satisfactory. Applications must be made within 3 months of the date on which notice of the appropriate list was first advertised, or, where the list has been amended as a result of a successful application for inclusion of a site in the first or second list, within 3 months of the date of the planning authority's written notification of their determination of that application.
39. 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. A site with a postponed review date will still be subject to the terms and conditions of an initial review at that date. 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.
40. 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; specify the date which the applicant wishes to be substituted for the one in the list; and be accompanied by the appropriate certificates. 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 postponement 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 in Annex C.
41. 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, and amend the first or second list accordingly. The planning authority must notify the applicant of their determination in writing.
42. 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 and the planning authority must amend the first or second list accordingly.
43. Any person who is an owner or tenant of any part of the site (or who holds an interest in any relevant mineral in the site) may apply for postponement of a review date. It is possible for there to be more than one application in respect of the same site, see advice in paragraph 65 and 66.
Duty to Serve Notice on Land and Mineral Owners of Preparation of First and Second Lists (Schedule 13, paragraph 8)
44. Planning authorities must serve written notice of the first list having been prepared on every person appearing to them to be an owner of land or having an interest in any relevant mineral in a mineral site included in the first list. The notice must be served no later than the date of first advertisement of the first list and must indicate whether the site is dormant or an active Phase I or II site. In the case of an active Phase I site, the notice must also:
(a) indicate the date specified for the submission of an application for determination of new conditions;
(b) explain the consequences which will occur if no application is made by the specified date; and,
(c) explain the right to apply for postponement of that date and indicate the date by which such an application must be made.
45. Planning authorities must also serve written notice of the second list having been prepared on every person appearing to them to be an owner of land or having an interest in any relevant mineral in a mineral site included in the second list. The notice must be served no later than the date of first advertisement of the second list. The notice must indicate that the site is an active Phase II site and must also:
(a) indicate the date specified for the submission of an application for determination of new conditions;
(b) explain the consequences which will occur if no application is made by the specified date; and
(c) explain the right to apply for postponement of that date and indicate the date by which such an application must be made.
Suggested forms of notice are at Annex D.
Reminders
46. Where an planning authority has served notice in respect of an active Phase I or Phase II site and no application for determination of conditions has been made by 8 weeks before the date specified in the relevant list, the planning authority must serve a written reminder on the land and relevant mineral owners at least 4 weeks before the specified date. The reminder must:
(a) indicate that the site is an active Phase I or II site as appropriate;
(b) indicate the date specified in the appropriate list by which an application for the approval of new conditions must be submitted to the planning authority; and,
(c) explain the consequences that will occur if no application is made by that date. A suggested form of reminder notice is at Annex E.
47. Mineral operators are asked to provide planning authorities with every assistance in identifying landowners and persons with an interest in relevant minerals in the site. However, where a planning authority is unable to identify the names or addresses of landowners or persons with an interest in relevant minerals for the purpose of serving written notices or reminders, they shall instead post a copy of the notice or reminder, as appropriate, by firmly affixing it to one or more conspicuous objects on the land in question. Where there are no or insufficient conspicuous object on the land, the planning authority may affix the notice or reminder to a post driven into or erected on the land.
48. 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. Site notices should be posted in suitably prominent places and, for larger sites, more than one notice may be appropriate.
49. Where a planning authority have failed to serve a written reminder or post a copy of a reminder on the land by the date required, they may do so at any later time. In such cases, the date by which an application for determination of conditions must be made is 3 months from the date of service or posting of the reminder rather than the date specified in the first or second list.
Applications for Determination of New Conditions (Schedule 13, paragraph 9)
50. Any person who is an owner of land or has an interest in any relevant mineral which is or forms part of a dormant site or an active Phase I or II site may apply to the planning authority to determine the conditions to which the relevant planning permissions relating to that site are to be subject. In the case of active Phase I and active Phase II sites, if no application is made by the date specified by the planning authority the permissions will cease to have effect. Applications must be in writing and must:
(a) identify the site;
(b) specify the land or minerals of which the applicant is an owner;
(c) identify any relevant planning 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 relevant minerals in the site;
(e) set out the applicant's proposed conditions; and,
(f) be accompanied by an appropriate certificate.
A standard form of application is set out at Annex F.
51. 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 new 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 in Annex C.
52. On receipt of an application, the planning authority should first check that the application form is accompanied by the necessary certificates, and that all have been properly completed and signed. If there are any deficiencies which would invalidate the application, the planning authority should inform the applicant without delay and should be prepared to grant an extension of time where appropriate.
53. 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. Paragraph 9(5) of Schedule 13 provides that a land or relevant mineral owner must publicise the application as if it were an application for planning permission. This means it must be advertised in a local newspaper and, in the case of underground working, be publicly displayed in at least one place in the area of the Planning authority. A suggested form of notice is at Annex C.
54. On receipt of a valid application the planning authority must determine the conditions to which each relevant planning permission is to be subject. A valid application is one which gives the information set out in paragraph 50 above and which is accompanied by the appropriate certificates. 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. In determining conditions relating to development for which permission is granted by a development order, the planning authority must have regard to guidance issued by the Secretary of State. (This provision relates to the imposition of conditions on planning permission for minerals development which regulate or control ancillary mining development - see paragraphs 95 to 99 below).
55. 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.
56. 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.
57. 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.
58. 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.
Information to Accompany Determination of Conditions where Working Rights are Restricted or Reduced (Schedule 13, paragraphs 1(6) and 10)
59. This applies to active Phase I and Phase II sites only. Where the planning authority determine conditions different from those submitted by the applicant, and the effect of the conditions - other than restoration and aftercare conditions - is to restrict working rights further than the existing conditions attached to the permissions relating to the site, the planning authority must provide a separate notice with their determination. Where the planning authority do not determine conditions different from those submitted by the applicant, or where the new conditions do not have the effect of further restricting working rights, no separate notice is required. Where a separate notice is required it should be issued with, and at the same time as, the notice of determination of conditions. The notice must state that the conditions the planning authority have determined differ from those submitted by the applicant; state that the conditions further restrict working rights; identify the working rights further restricted; and, state whether or not, in their opinion, the effect of that restriction would be such as to prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site (also referred to in this guidance note as "unreasonable prejudice"). In forming that opinion, planning authorities must have regard to the guidance in this Circular.
60. Paragraph 1(6) of Schedule 13 provides that working rights are restricted in respect of a mineral site if any of the following is restricted or reduced in respect of the mineral 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.
A suggested form of notice is set out in Annex G.
Meaning of "Mineral Waste"
61. Section 275(1) of the 1972 Act as amended by the 1991 Act defines the "depositing of mineral waste" as "any process whereby a mineral-working deposit is created or enlarged...". "Mineral-working deposit" is defined as "any deposit of material remaining after minerals have been extracted from land or otherwise deriving from the carrying out of operations for the winning and working of minerals in, on or under land". For the purpose of what constitutes a restriction on working rights, the deposition of mineral waste will generally mean the permanent deposit of waste material arising from the extraction of minerals or minerals processing, and not overburden mounds or other temporary deposits which will be disposed of in the mineral void, or otherwise used in the site restoration.
Right to Appeal Against Planning Authority's Determination of Conditions (Schedule 13, paragraph 11)
62. Where the planning authority determine conditions different from those submitted by the applicant or give notice that, in their opinion, a restriction on working rights would not prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site, the applicant has a right of appeal to the Secretary of State.
63. An appeal must be made by giving notice to the Secretary of State within 6 months of the planning authority's notice of determination.
Compensation (Schedule 13, paragraph 15)
64. Where the planning authority do give notice that they have determined conditions different from those submitted by the applicant; specify the further restriction of working rights; and, state that in their opinion, the effect of the restriction would be such as to prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site, 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. Persons having an interest in the land or relevant minerals comprised in the mineral site whose interests have been adversely affected by the restrictions imposed by the deemed modification order will be entitled to claim compensation under Section 153 of the Town and Country Planning (Scotland) Act 1972 unmodified by Section 167A of the Act or any regulations made thereunder.
More than One Application in Respect of the Same Site (Schedule 13, paragraph 14)
65. 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 relevant mineral in the site) to apply for postponement of a review date or for the determination of new conditions, it is possible for there to be more than one application in respect of the same site. The Act provides that each eligible person may make only one application for postponement or 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.
66. 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.
Reference of Applications to the Secretary of State (Schedule 13, paragraph 13)
67. The Secretary of State may give directions requiring applications for the determination of conditions to be referred to him rather than being dealt with by the planning authority. Such directions may relate either to a particular application or to a class of application (e.g. a particular mineral type). The Secretary of State intends to use this power very sparingly along the same lines as his power of call-in for planning applications generally.
68. Where the Secretary of State does call in an application for his own determination, he is bound by the same requirement to provide a notice accompanying his determination of conditions where working rights are restricted or reduced.
Appeals: General Procedural Provisions (Schedule 13, paragraph 16)
69. Paragraph 16 of Schedule 13 provides that notice of appeals must be made on a form supplied by the Secretary of State for that purpose. Suggested forms of notice are at Annex H and model appeal forms at Annex I. The procedures for determination of appeals are those that apply to IDO permissions and the usual right of appeal to the Court of Session against the Secretary of State's determination applies.
70. Before determining a called-in application or an appeal the Secretary of State must, if either the applicant/appellant or the planning authority so wish, give each of them the opportunity of appearing before or being heard by a person appointed for that purpose. In any event, where the Secretary of State is minded either to confirm or determine conditions which would impose a further restriction on working rights and, in his opinion, the effect of that further restriction would prejudice adversely to an unreasonable degree either the economic viability of operating the site or the asset value of the site, he will consult with the interested parties before issuing his determination or decision.
Permissions Ceasing to Have Effect (Schedule 13, paragraph 12)
71. Where no application for determination of conditions in respect of an active Phase I or Phase II site has been made to the planning authority by the date specified in the appropriate list - or as varied or postponed - (or such later date as may have been agreed in writing between the applicant and the planning authority or, where the planning authority served a reminder later than 4 weeks before the specified date, within 3 months of the date the reminder was served), the permissions, relating to that site, other than any existing restoration and aftercare conditions, cease to have effect on the day following the last date on which such an application may be made. There is no specified date for the submission of applications for the determination of conditions relating to dormant sites, but such sites cannot lawfully recommence working until a new scheme of conditions has been approved.
72. Where a Phase I or Phase II site has not been included in the first list, and no application for inclusion of the site has been made within 3 months of the date of first advertisement of the list, each permission relating to that site, except in so far as it imposes a restoration or aftercare condition, will cease to have effect on the day following the last date on which such an application may be made.
73. Where an application for inclusion in the list has been made, unless the application is approved (either by the planning authority or the Secretary of State on appeal), the permissions relating to the site cease to have effect on the date when all the proceedings relating to the application, including any appeal to the Court of Session, have been finally determined and the time period for any further appeal has expired.