Scottish Government

REVIEW OF OLD MINERAL PERMISSIONS

CHAPTER THREE REVIEW: PROGRESS, TRENDS & FEATURES

3.1 This Chapter presents the principal findings of the study. In particular, it establishes the progress made by planning authorities in the review of old mineral planning permissions, identifying general patterns and trends and highlights recurring features in undertaking the review process in practice. All figures quoted in this Chapter reflect the position as of July 2001.

REVIEW CASES - OVERVIEW

3.2 The numbers of dormant, Phase 1 and 2 sites and IDO cases throughout Scotland are presented in Table 1 below. The figures in brackets are derived from the 1998 survey undertaken by the (then) Scottish Office Development Department.

Table 1 - Review Cases Summary

3.3 The study established that there has been some marginal change in the number of cases as the review process has been progressed. This was to be anticipated, insofar as there is specific statutory provision for the reclassification of sites, for example in the event of a new designated nature conservation site being affected by a working. In addition, it is inevitable that the working circumstances of some sites will alter over time. The study also established that some planning authorities experienced difficulties in classifying some individual sites in preparing their initial list. In such cases, there was a tendency to adopt a cautious (and prudent) approach by including marginal sites, bearing in mind the statutory implications of sites being excluded from the initial list.

3.4 The study found considerable variation between planning authorities in terms of the methods employed in compiling the initial list. The availability of existing records and the organisational structure of the authority primarily influenced the methods chosen. Organisational structure was of particular importance to those authorities with decentralised area office based administrative structures. It is evident that for many such authorities the initial decisions on division of responsibilities for the review process between centrally based staff and those of the area offices have persisted to the present time. For some authorities, further divisions of responsibility were created with policy staff (generally those responsible for minerals policy in development plans) responsible for the preparation of initial lists and development control staff responsible for the processing of subsequent applications. It is important to also recognise that work on the review commenced relatively soon after local government reorganisation and before some authorities had reconciled the record systems of the former councils.

3.5 The study revealed that relatively few planning authorities sought to establish any meaningful dialogue arrangements with local mineral operators in progressing the review. This was particularly the case at initial stages, where in many cases the sole contact was through the service of the requisite statutory notices. This finding appears somewhat inconsistent with the expectations of government, as indicated in Circular 34/1996, in seeking a "constructive approach" on all sides to the review process.

3.6 In spite of the initial difficulties, all planning authorities published the first list before or around the required date of 1 April 1997. It would however appear that 3 authorities have failed to publish a second list (required by 1 January 2000) although in each case there would appear to be active Phase 2 workings within their respective areas. It must be acknowledged that for 2 of these authorities there is some doubt over the relevant site(s) status. In contrast to the first list requirement, publication of the second list was unnecessary for those authorities with no active Phase 2 workings within their administrative area.

3.7 Table 2 provides, in summary form, the current position in progressing the review throughout Scotland. In addition, it should be noted that all 7 IDO cases are determined.

Table 2 - Review Decisions And Case Outcomes

Note 1 * Information not available

Note 2 Figures may not correspond with case numbers quoted in Table 1, as a single case may be recorded in more than one category in Table 2. For example, for a site the original consent may have lapsed, but is now the subject of a new planning application which remains undetermined.

Note 3 Figures shown in brackets are derived from the earlier unpublished survey by the Scottish Office in 1998. In the absence of information to the contrary it is assumed that all cases in these authorities remain unresolved

3.8 The figures clearly indicate that, contrary to expectations, the review process in relation to Phase 1 and 2 sites is far from complete. Superficially, it could be concluded that with only 33 (20%) of the 167 review cases determined through the issue of a decision on a new scheme of conditions, and with such decisions confined to 9 of the 32 planning authorities, the statutory requirements have failed to achieve the intended outcome. Furthermore, it would appear that considerable variations exist between planning authorities in progressing the review process. However, other aspects of the study suggest a more complex pattern of approach to the review and issues associated with old planning permissions than that superficially presented by these statistics.

3.9 Firstly, it is important to recognise that there is an inherent assumption within the statutory time scale for determination of new schemes of conditions (3 months) that such applications are relatively straight forward and hence can be processed through the planning system expeditiously. The reality of most applications, in common with most minerals developments, is that they are inherently complex, often requiring considerable consultation with other statutory bodies and involving extensive negotiation to produce a mutually acceptable outcome. The use of EIA in association with such applications is both indicative of the complexity of the nature of this form of development, and can add to the complications within the decision-making process. Thus, far from a simple exchange between the mineral operator and planning authority of a list of "standard" conditions to be added to the original consent, decision-making processes associated with review cases are often as complex as those typically found for any new proposal for minerals extraction. This is reinforced by the significant numbers of public objections typically received by the planning authority in dealing with most applications for the approval of new schemes of conditions. Some indication of the relative complexity of the issues considered in a typical review case is evident from the examples of actual approved schemes of conditions found at Annex 2 and 3 of this report.

3.10 For these reasons, the study found 18 cases where, by mutual agreement, the review requirement was met as part of a new planning application for the site. This was more frequently used where the remaining life of the working was relatively limited, but there was a prospect for extension of the site. There is considerable evidence to suggest that faced with the prospect of a major submission involving the use of EIA simply to agree new conditions, a considerable number of operators were of the view that a new application to also extend the life of the site was preferable. However, in seeking to discharge the review requirement in this fashion, there was considerable variation adopted in the approach of the planning authorities. In particular, it is evident that a number of authorities generally refused to accept this approach, unless the boundaries of the proposed working site coincided exactly with those of the original consented area. It was found that in at least 3 cases, the review applications for Phase 1 sites remain deferred until such time as separate applications for extension of the workings are determined, thereafter the new scheme of conditions will be agreed in line with those for the extension. Thus, there is evidence to suggest that the 18 examples found in the study potentially mask a greater number of cases being dealt with in this fashion.

3.11 The study finding that to date some 38 of the 167 consents subject to review in Phase1

and 2 have lapsed due to the non-submission of a new scheme of conditions by the specified date is surprisingly high. It was to be anticipated that there would be no remaining interest in some sites due to the mineral becoming exhausted or uneconomic to continue working due to changing market or ground conditions. However, given the general difficulties in obtaining planning permission for mineral working in recent years, it is surprising to find that some older consents have simply been lost by default. The study established cases in 3 different local authority areas where the effect of the statutory review requirement has been that long established quarries continued to work without the benefit of a valid planning permission. Further investigation revealed that the respective planning authorities were addressing these cases, but this aspect is further examined in Chapter 4.

3.12 Finally in relation to Table 2, it is important to recognise that the high number of unresolved Phase 2 cases is primarily a reflection of the timing of this study relative to the required application submission dates. In contrast to Phase 1, where the submission dates were largely set for one year following publication of the first list (i.e. April 1998) and where there were relatively few requests for postponement extending this time scale, a high proportion of Phase 2 cases have agreed submission dates during 2001 and 2002. This trend in relation to Phase 2 submissions appears to be a reflection of seeking to facilitate use of EIA within the process, which was not an issue at the time of the first list, and increased recognition of the need to establish realistic and mutually convenient timescales. Although the earliest any Phase 2 cases could reasonably be anticipated was mid-2000 and for most authorities January 2001, it is evident that few such cases have been determined to date. The key point to note is that the 50 unresolved Phase 2 cases referred to above do not represent any particular cause for concern at this stage. However, when considered alongside the number of outstanding Phase 1 cases, it is clear that there remains a significant workload to complete this 'first round' of the review process.

3.13 It is however evident that a significant proportion of the Phase 1 cases remain unresolved and, with at least 25 outstanding cases identified in the study, is potentially indicative of a considerable problem of delay within the decision-making process.

3.14 However, while the exact magnitude of this outstanding workload may be questioned it is evident from the study that many planning authorities experienced a range of difficulties in processing the Phase 1 applications. The study revealed that in most cases, difficulties were not arising from a single common source (see 3.15 below). However, the effect was that the time taken in the determination of the initial submissions far exceeded the 3 month statutory period in most cases. Best estimates in this regard would suggest an average decision-making process in many cases in the order of 12-18 months. This estimate does not include the time period devoted to any pre-application discussions. While it must be acknowledged that some exceptionally complex and difficult cases will arise, often requiring considerable time and effort to resolve, it is evident that the general pattern of excessive delay is relatively common and widespread.

3.15 The most common difficulties reported by the planning authorities and contributing to delays within the decision-making process were:

• Complexity of individual cases
• Availability of staff resources - workload and expertise issues
• Quality of submissions and information from mineral operators
• Availability and quality of past planning records
• Quality of guidance
• Potential compensation liability issues
• Public perception of applications for approval of new schemes of conditions
• Relative planning priorities within authorities

These matters are examined in detail in Chapter 4 below.

3.16 These difficulties must be seen in an appropriate context, recognising that approximately 30% of planning authorities appear to have experienced few problems in meeting their statutory responsibilities for the review. The study established that in terms of resource commitment 15% of authorities considered it was less than anticipated, 50% reported it was as anticipated with 35% suggesting the review required a commitment greater than anticipated.

Specific Features of Review Cases

3.17 Of the total actual and potential 167 Phase 1 & 2 cases and 7 IDO cases within Scotland, detailed information was obtained for 102, representing a sample of 59%. This sample comprised 58 Phase 1 cases, 37 Phase 2 and 7 IDO cases. In addition, details of 2 periodic review cases were obtained.

By mineral type, the sample incorporated:

3.18 This information was generally obtained from Part B of the questionnaire. However, variation in the level of detail supplied by different planning authorities meant that in some instances the questionnaire has been supplemented by information gained from case-studies and other sources. The questionnaire was used as the initial basis for identifying specific aspects of the review process presented below.

APPEALS

3.19 Rights of appeal in review cases are established in Schedule 9, paragraph 11 of the 1997 Planning Act in circumstances where:

(a) The approved conditions differ from those submitted by the applicant, or

(b) The planning authority has indicated that a restriction of working rights would not be such as to prejudice adversely to an unreasonable degree either the economic viability of the working or its asset value.

The study established that to date there has only been one appeal lodged against a planning authority decision, but the appeal remains to be determined. Given the manner in which most planning authorities have chosen to progress review cases, based on negotiation with applicants, it could be reasonably assumed that the number of appeals is likely to remain low.

3.20 In addition, there is an outstanding appeal against the non-inclusion of a 1960's consent on the initial list of sites. This case is somewhat exceptional in terms of its' particular circumstances, and as such, is unlikely to give rise to further similar cases in the future. However, the case is of particular interest to the review process in general, insofar as if may help clarify the meaning of the phrase "no minerals development has been carried out to any substantial extent" in relation to dormant sites.

Use of planning or other regulatory agreements

3.21 Agreements are generally used in conjunction with planning conditions to extend the form of control or regulation of the development in circumstances where the use of conditions might not be legally competent or otherwise inappropriate. Although they have the effect of extending the scope of planning control, their potential value lies rather more as a means of formalising agreements made through negotiation between the various parties in the planning process.

3.22 Arguably, one of the more surprising findings has been the remarkably little use made of section 75 or any other form of regulatory agreements (for example, under section 48 of the Roads (Scotland) Act 1984) by planning authorities in progressing review cases. It is surprising insofar as such agreements are relatively common in the regulation of minerals developments generally, and in particular, in relation to arrangements for site restoration and aftercare. The study found only one resolved case where a section 75 agreement had been used. It was however noted that a further four undetermined cases have been delayed while section 75 agreements are negotiated. While it might be suggested that planning authorities could be reluctant to use agreements in order to avoid the inevitable delays in decision-making as they are drafted and concluded, the study found no evidence to support this view. Indeed the study revealed two cases where the applicants had suggested the use of section 75 agreements, but in both cases, the planning authorities rejected this means of resolving deadlocked negotiations. The study was unable to identify any common reason to explain why the planning authorities appear reluctant to use agreements in review cases.

3.23 It may be that as an outcome of a bargaining process, agreements are unfortunately associated with planning gain situations, which in recent years has tended to eclipse their usefulness as a highly flexible mechanism available to assist in the resolution of disputes between parties. However, although acknowledging that agreements have "a limited but useful role" their use has never been particularly encouraged by government, as reflected in SODD Circular 12/ 1996 which states that "they should only be sought where they are required to make a proposal acceptable in land use terms."(paragraph 4). As the refusal of planning permission is not an option in review cases, questions of acceptability in land use terms do not arise. It is notable that at no point in SODD Circular 34/ 1996 is the potential use of agreements even mentioned.

3.24 It is however evident that agreements can be used to overcome some of the obstacles which can arise in review cases such as disputes over the exact boundaries of the original consented site - a problem reported by a number of authorities. Where such differences occur there has been a trend towards seeking a new planning application (and hence generating fee income) rather than simply agreeing boundaries for the purposes of review initially through a section 75 agreement, thereafter allowing for the submission of a new set of conditions only.

Designated sites

3.25 Sites which are wholly, or partly, located within a Site of Special Scientific Interest (SSSI) or a National Scenic Area (NSA) are treated as Phase 1 sites for review purposes. In addition, as and when Special Protection Areas (SPAs) or Special Areas of Conservation (SACs) are designated the planning authority has a duty to review any extant permissions for development of any type which are unimplemented, or partly implemented. This will of course include any permissions for minerals development. Such reviews are undertaken under the terms of the Conservation (Natural Habitats Etc.) Regulations 1994 and are separate, and procedurally different, from old mineral permission reviews. However, there is scope for interaction between the two review processes primarily dependant on the relative timing of the designation of the area and the review of the old minerals permission(s).

3.26 The study established 9 cases (from a total of 174) where the mineral working was located within or affected a designated area as indicated in Table 3 below.

Table 3 - Review Cases Within Designated Areas

* Note: Two sites were affected by more than one designation

3.26 It must however be acknowledged that this figure may be an understatement of the position throughout Scotland as a result of the manner in which a number of planning authorities provided detailed case information. Detailed information was only available for one example where a review site was located within a SPA. Unfortunately this case, the Longannet Deep Mine (underground coal mining), was not particularly illuminating on the potential interaction between the old permissions review process and that of the Habitats Regulations, by virtue of a new application having been submitted for significant extension of the mine.

3.27 There is some evidence to suggest that review cases for sites located within designated areas, particularly those affecting SSSIs can be unusually problematic. Difficulties appear to centre on the perception of the review process by those primarily concerned with nature conservation and protection interests. It is clear that in some such cases subtle distinctions between an application for the approval of a new scheme of conditions, and a normal planning application for permission for minerals extraction tend to be lost or misunderstood by objectors. Such objectors often see the review as an opportunity to seek the closure of an existing mineral working. It is quite evident that planning authorities have firmly resisted any potential pressure in this regard, but there is no doubt that this form of representation has added to the difficulties in dealing with some cases.

Periodic Reviews

3.28 Periodic reviews will be undertaken every 15 years from the date of the most recent consent or the last review. As such, the requirement for periodic review for sites where the permission was granted after 22 February 1982 might have been as early as 1997. It is perhaps noteworthy that a somewhat odd situation was created in which a planning permission granted in the early 1980s could be the subject of review prior to one granted in 1969 or early 1970s and thus classified as a Phase 2 active site. This situation has arisen for at least 2 planning authorities.

3.29 The study found that few authorities have comprehensively or systematically assessed the requirements for periodic reviews. It was however established that approximately 25% of authorities had at least run checks on all current active workings (other than Phase 1 or 2 sites) to determine when the first periodic review of the relevant consent would be required. This finding is of particular significance as it confirms that for most authorities little or no work has been undertaken on periodic reviews. The study would suggest that for approximately 75% of authorities no assessment has been made of the extent of the future periodic review workload nor when such reviews should commence. This represents a matter of some concern, particularly as the periodic review requirements are likely to generate a workload pattern for a number of authorities significantly different to that experienced to date. In particular, it is evident that for those authorities where hard rock quarrying is the predominant form of minerals extraction, most (if not all) sites will have been the subject of Phase 1 or 2 reviews and thus there will be little further periodic review work required in the next 15 years. However, it is evident that for some authorities, notably within the Central Belt, which had relatively few initial review cases to resolve, there could be a disproportionately high number of periodic review cases potentially arising in the near future.

3.30 It is suggested that due to the on-going nature of the process and the considerable level of outstanding work to complete the first "round" reviews, any revision of current guidance deemed appropriate to reflect the changing nature of the task would be worthwhile and appropriate.

Administrative/ organisational arrangements for review

3.31 As anticipated in the research design, there are significant differences between planning authorities in the arrangements adopted for undertaking the review process. This is primarily, but not exclusively, a reflection of the organisational structure of the local authority, and how statutory responsibilities for the discharge of the planning function are organised within that structure. Arguably, the most significant aspect of such arrangements for the review process centres on whether the local authority operates on the basis of a decentralised administrative and decision-making structure. For such authorities, major variations exist in arrangements for delivery of the planning service. These range from authorities in which area offices are virtually autonomous in every respect, to those authorities, where major powers and decision-making responsibilities are retained at the centre of the organisation. These features have important implications for progressing the review process.

3.32 In addition, a distinctive feature of Scottish local government since 1996 has been the removal of many of the traditional departmental structures for service delivery. Thus, the planning function is now typically part of a larger organisational grouping, with responsibilities for several local government services. In a number of authorities, responsibilities for statutory planning matters have been further divided between different units dealing with policy (development plans) and regulatory functions (development control). The effect of such arrangements is quite simply that planning in general can now represent a relatively minor function relative to other areas of responsibility within the organisational grouping. Within such an arrangement, little priority or significance is likely to be attached to the review task.

3.33 The study found that this was indeed the case for a number of authorities; best reflected in the fact that for some, establishing which officials were responsible for the review was in itself a significant task! The principal organisational arrangements for the review established in the study were:

(1) All review work undertaken by development control staff at a single location

(2) Initial preparation of lists by minerals specialist within a policy/ development plans unit, with subsequent applications dealt with by development control staff at a single location or located in area offices

(3) All review work split between area offices depending on the location of the site and handled by development control staff

(4) Initial preparation of lists by minerals specialist within central (headquarters) office, applications submitted to area offices but referred to central office for determination.

3.34 The study found that there is no one single arrangement that appeared to be universally successful in progressing the review process. There was however some evidence to suggest that the arrangements identified at (2) and (3) above could prove potentially problematic notably in terms of achieving consistency of approach between area offices. It must be acknowledged that this problem is not simply confined to review cases.

3.35 It was evident however that while the organisational arrangements for the review must be tailored to the particular structure of the authority, some authorities had achieved considerably better progress than others in completing the review task. It was found that these authorities had common characteristics primarily based on:

• Adoption of an explicit strategy for undertaking the review work
• Engaging in positive pre-submission dialogue with mineral operators/ applicants, typically involving other relevant statutory bodies such as SEPA and SNH in these discussions
• Development of good internal documentation within the authority to monitor progress
• Allocation of review cases to a single or very limited number of planning officials
• Distinction of review cases from other applications being handled within the development control process.

In summary, review cases require positive management within the authority as opposed to simply being treated as "another planning application" for determination.