MONITORING AND ENFORCING MINERAL PERMISSIONS
OVERVIEW OF RESPONSES TO CONSULTATION
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Dear Consultee
MONITORING AND ENFORCING MINERAL PERMISSIONS
You may recall that the Executive issued a consultation paper on 21 October 2003 seeking views on how to improve arrangements for the monitoring and enforcement of mineral permissions. A copy of the consultation paper can be viewed at www.scotland.gov.uk/consultations/planning/memp-00.asp.
A copy of the Executive's overview of the responses to the consultation paper is attached. Copies of the submitted responses may be viewed at the Scottish Executive Library, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD. A digest of the comments made by individual respondents is at www.scotland.gov.uk/planning.
The overview sets out the Executive's response to the issues raised by respondents and confirms that we intend to proceed with plans to introduce a new statutory charging regime. This will take account of the responses to the consultation paper and ongoing research. Further consultation will take place on detailed provisions in due course.
Yours faithfully
Ian Mitchell
IAN MITCHELL
MONITORING AND ENFORCING MINERAL PERMISSIONS: OVERVIEW OF RESPONSES TO CONSULTATION
INTRODUCTION
Background
1. The Scottish Executive issued the consultation paper Monitoring and Enforcing Mineral Permissions on 21 October 2003. Responses were requested by 27 February 2004 although late responses were accepted up to the end of March 2004. Approximately 1000 copies of the paper were issued to a wide range of stakeholders including operators of all mineral sites in Scotland. The paper sought views on possible options aimed at improving existing arrangements for monitoring and enforcing the planning conditions which are attached to mineral permissions (including opencast coal).
Overview of responses
2. The Executive received 32 responses from a broad range of interests. The number of responses can be categorised as follows:
Local authorities | 13 |
Mineral representative bodies | 3 |
Mineral operators | 7 |
Non Departmental Public Bodies | 1 |
Non-Government Organisations | 2 |
Professional consultants | 2 |
Community interests | 4 |
3. A full list of respondents is at Annex A. In addition, one respondent submitted comments in confidence whilst there were a further four incomplete responses.
4. This overview summarises the key issues raised in the responses but it is not intended to provide a comprehensive report on every comment received. Copies of the submitted responses may be viewed at the Scottish Executive Library, Saughton House, Broomhouse Drive, Edinburgh, EH11 3XD (contact Mr Alan Gold - Tel 0131 244 4552 for an appointment). A digest of the comments made by individual respondents is available on the Executive's website at www.scotland.gov.uk/planning.
KEY ISSUES RAISED AND SCOTTISH EXECUTIVE RESPONSE
General
5. As a general rule, the consultation paper was welcomed by most stakeholders with the exception of those within, or representing, the minerals industry. Any analysis in the following paragraphs must recognise that the general position of the industry is to reject what is seen as an unfair, unnecessary and unwelcome initiative. Any comments made by the industry to specific questions should not therefore be seen as acceptance of what is being proposed. This paper attempts to address the concerns raised by the industry, and others, by setting out the Executive's response to the 21 questions below.
Q1 | Do existing provisions have a continuing role to play in securing adequate monitoring and enforcement arrangements? |
6. Most respondents agreed that Section 75 Agreements have an important, and continuing, contribution to make to securing adequate arrangements for monitoring new proposals. These provisions have the benefit of allowing planning authorities and operators to put in place arrangements that are appropriate for specific sites and circumstances. Such arrangements can work well in practise and are used in a number ways, including securing external expertise. Some disadvantages were cited. These included a dependency on operators to agree voluntarily to provisions (although some considered that "Agreements" were far from voluntary); that delays arise in the application process because of the time it takes to conclude Agreements; and that they cannot be "imposed" retrospectively. A number of respondents believed that Section 75 agreements had failed to deliver on a number of specific occasions.
Executive's response: Section 75 agreements appear to present the best option for ensuring that arrangements properly reflect local needs. Planning authorities and operators should continue to consider whether adequate arrangements can be secured when considering new planning applications. |
Q2 | Is the new power of well being considered an option for securing the effective monitoring of mineral sites? |
7. There was very little support for using this power. Any interest tended to be cautionary and subject to more detailed guidance being issued.
Executive's response: Further guidance on the new powers of well being was issued in February 2004 and is available at www.scotland.gov.uk/library5/localgov/pawbg.pdf. It remains a matter for local authorities to consider the use of these powers in relation to improving monitoring and enforcement arrangements. |
Q3 | What relationship should existing arrangements have with any new charging regime? |
8. There was a general acknowledgement that Section 75 Agreements could not be relied upon to secure arrangements retrospectively. A new charging regime would therefore be needed although there were mixed thoughts on how different schemes should link together. Some respondents considered that any new arrangements should over-ride existing arrangements whilst others, particularly planning authorities, believed that it should be for authorities to consider, on a case-by-case basis, which scheme is the most appropriate for a particular site.
Executive's response: It would not be possible to prevent planning authorities and operators putting in place separate arrangements through Section 75 mechanisms. Where this has already been done, it might be assumed that adequate monitoring arrangements are already in place. It seems, therefore, that, in such circumstances, sites should be exempt from any new charging regime. In the future, if local and more appropriate arrangements can be reached through Section 75 mechanisms then, again, it seems sensible that they should take precedence over any new charging regime. |
Q4 | What "best practice" monitoring is needed to provide a level of scrutiny for mineral permissions that is both robust and reasonable? |
9. The "best practice" steps outlined in the consultation paper were generally considered reasonable although some further suggestions were made. The main recurring theme in response to this point related to the lack of mineral expertise within local authorities.
Executive's response: The ARUP suggestions provide a good foundation to help ensure that proper arrangements are in place to ensure proper monitoring will take place. These, together with the comments received, will be considered further in due course. |
Q5 | What "best practice" is acceptable to ensure proper and ongoing dialogue with local communities? |
10. Most respondents favoured some form of local liaison committee. Views varied on constitution/frequency of meetings/wider publicity etc. A number of respondents stressed the need for arrangements to reflect local circumstances.
| Executive's response: Community liaison is an important part of the Executive's environmental justice agenda and the Executive expect planning authorities and operators to work closely with communities during all stages of mineral operations. It is recommended that formal liaison mechanisms, such as a community liaison or advisory panel, should be established to ensure that community concerns are properly addressed and to promote better mutual understanding. This should help ensure that work proceeds smoothly and with minimum inconvenience to those most affected, and that legitimate local concerns about the operation of the site can be addressed quickly. |
Q6 | Is the ARUP cost estimates, which would eventually be uprated using GDP inflators, a reasonable basis for quantifying "best practice" monitoring and enforcement costs in Scotland? |
11. The ARUP estimates were generally considered a good starting point. However, concerns were raised about their applicability to Scotland and whether they would adequately cover certain situations that might arise i.e. buying in external expertise or the pressures on rural planning authorities.
Executive's response: At this stage, the ARUP estimates appear to provide the "best available" information. Previous attempts to gather information in Scotland have proved fruitless. However, the figures will be kept under review and take account of further work that is being undertaken in England. |
Q7 | Should there be a rebate for a good operator? |
12. Most respondents were generally supportive of providing rebates for good operators although many raised doubts over how such a rebate would work in practise. Many made links to ISO 14001 otherwise judgements would need to be made to decide what would constitute a "good" operator.
Executive's response: The Executive is supportive of the principle that a rebate should be given to good operators although a charging regime based on number of visits may be tailored to reflect that good operators may need visited less often and therefore pay reduced fees. |
Q8 | What should authorities produce to show that effective monitoring is taking place? |
13. The outputs referred to in the consultation paper were generally supported with particular support being placed on annual reports. A number of other outputs/possible problems were highlighted.
Q9 | Do respondents agree that Option 4, waived where alternative local agreement is reached, represents the most appropriate way of ensuring effective monitoring arrangements are in place? |
14. Of the 4 options floated in the consultation paper, Option 4, relating to a fees regime based on a site visits basis, was considered to be the most favourable. The general preference was for operators to determine the number of visits although this may require regular negotiation and differing views over the number of visits that should take place. This would place an additional burden on both operators and the industry.
Executive's response: The Executive continues to believe that Option 4 would best ensure that a charging regime would deliver clear and guaranteed community benefits. It will proceed on this principle although acknowledges that further work needs to be done before final arrangements can be put in place. This is likely to require further consultation in due course. |
Q10 | Are there other charging options that should be considered? |
15. Respondents suggested a number of other options. The most frequently raised suggestion, primarily from the minerals industry, was funding any monitoring and enforcement regime through the Aggregates Levy. Other specific options were put forward suggesting schemes based on fines, output per tonne, size of site and independent and specialist review. However, no particular alternative option re-occurred with any frequency although industry respondents did press for the Executive to carry out a formal audit of planning authorities monitoring activity over the next 3 years to obtain a sounder understanding of the costs involved.
Executive's response: Responses did not reveal any clear option although a number of suggestions were made that might merit further consideration as being integrated into any finalised scheme. |
Q11 | Should any fee levels be set on a case-by-case basis or centrally by the Scottish Executive? |
16. Respondents were split over whether the fees should be set nationally or locally. However, most favoured some form of national fees regime with many suggesting that rates allowed for flexibility at a local level to take account of local circumstances.
Executive's response: National fee levels are considered to be the most appropriate way forward to ensure a level playing field. Option 4 would allow some flexibility in tailoring number of visits to local circumstances. Further consideration will be given to whether fee levels should stipulate a "maximum" level that can be reduced at a local level to take into account specific circumstances. |
Q12 | Are existing enforcement powers considered adequate to ensure that planning authorities can respond effectively to breaches of planning permission? |
17. Again, views were mixed on the adequacy of existing powers. Some respondents considered powers to be ineffective whilst others accepted that provisions were satisfactory but planning authorities were unwilling/not properly staffed to ensure that powers were used effectively. A number of concerns were raised about the slowness of procedures and problems with pursuing cases through the Courts.
Executive's response: The Executive is currently considering, more widely, existing enforcement provisions. |
Q13 | What should be defined as a chargeable visit? |
18. It was generally agreed that the number of chargeable visits should be set and agreed locally. In addition, further visits are likely to deal with complaints, etc. Some respondents felt that it would be fair to charge for these visits if the complaint revealed a legitimate breach of planning control. Other types of visits, such as those made unannounced or to follow up previous visits, were suggested.
Executive's response: It is unlikely that the Executive will envisage a situation where only "chargeable" visits are undertaken. "Chargeable" visits should be along the lines of best practise procedures outlined in the consultation paper. Planning authorities will still be expected to take complaints seriously and, again, Option 4 would allow flexibility to adapt the number of site visits to reflect the number of complaints that are made in relation to specific sites. |
Q14 | Is there a need to define what constitutes a "site"? |
19. Most respondents were content for the site to be what is defined in the plans accompanying the planning application although there may be a need to cover all aspects that are regulated by the planning permission (e.g. routing arrangements). Where comments were made, the view was that the site should include all valid planning permissions, including extensions.
Executive's response: The Executive will consider whether "site" should be defined in the legislation that will be required in due course to implement these proposals. |
Q15 | How many visits should be made annually? |
20. Views ranged from one to twelve per year and it was widely acknowledged that much would depend on local circumstances including whether regular breaches of planning permission occur. A different number of visits may need to be undertaken at different stages of operation.
Executive's response: The Executive's interim view is that a maximum number of six chargeable visits appears reasonable and this can be reduced, at an authority's discretion, to reflect local circumstances. Again, the Executive's view is that "capping" the number of chargeable visits should not prevent authorities from taking action in relation to complaints, etc. |
Q16 | What should site visits cover? |
21. Most respondents linked site visits to a review of all aspects covered by the planning permission and a number specifically raised the issue of using the visits to discuss complaints. This appears sensible.
Executive's response: Site visits should review all aspects of the planning permission and deal with how any complaints need to be/are being addressed. |
Q17 | How should dormant/inactive sites be monitored? |
22. It was generally acknowledged that dormant/inactive sites should be monitored on a less frequent basis. Most respondents considered annual monitoring acceptable although some felt that regular spot checks might be necessary. The need to charge a fee was also raised. Others suggested that monitoring would need to be assessed on a case-by-case basis or not undertaken until work recommenced.
Executive's response: It appears appropriate to extend the fees regime, on a reduced basis, to dormant sites. |
Q18 | Should the fees regime continue during the restoration and aftercare period? |
23. The general view was that the fees regime should apply during restoration and aftercare, but perhaps on a reduced basis. A number of respondents thought that there should be a distinction between the "restoration" and the "aftercare" period as the later would require less resources. The need for technical expertise was highlighted, as was a preference for such activities to be controlled through Section 75 agreements.
Executive's response: Agree that the regime should cover restoration and aftercare, but on a reduced basis. |
Q19 | What action should be taken against operators who do not pay a fee? |
24. Suggestions were almost evenly split between the revocation or suspension of an operator's planning permission through to pursuing debts in the usual ways through the Courts. It was warned that the costs of pursuing non-payment may be considerable and could act as a deterrent to Councils. One Council suggested fees should be paid in advance whilst another felt that future application fees by the same operator should be used to pay outstanding debts. This could apply on a national basis. Another believed that the Executive had an obligation to contribute.
Executive's response: Any scheme would need to be well thought out to ensure that payment problems do not arise. The Environmental Impact Assessment (Scotland) Regulations 2002 introduced provisions, which lead to the suspension of planning permission if operators do not submit an environment assessment in relation to the mineral review process. It may be worth considering whether similar procedures can be applied to the non-payment of fees. |
Q20 | Should monitoring and enforcement fees apply to other forms of permission and if so which ones? |
25. Almost all respondents believed that any fees regime should not be restricted to mineral operations. Many believed that monitoring fees should be applied across the board. Where specific activities were mentioned, the greatest support was for waste facilities/landfill sites although other developments such as wind farms and large residential, commercial and industrial developments were also frequently mentioned.
Executive's response: This will be considered further and in conjunction with the current research being undertaken by ARUP, on behalf of the Scottish Executive, on resourcing the planning service. |
Q21 | What impact will the proposals outlined in this paper have on mineral operators? |
26. The industry believed that the proposal will result in the imposition of further, unnecessary and unjustified, financial burdens on operators and would impinge on their ability to compete with imports and illegal quarrying activity. Some local authorities shared the industry's view that such impacts would be felt the most by small operators in rural areas. The costs that the industry already pay were highlighted - application fees, EIA costs, legal costs, corporation tax, local business rates, aggregates levy, SEPA charges. It was considered that there was a limit to what operators could pay and a general feeling that the industry was being singled out.
27. Others felt that fees would be an incentive for operators to improve performance and introduce a level playing field in working standards. Costs would be negligible and are likely to be passed on to consumers. It was suggested that past performance of operators should be a material planning consideration.
Executive's response: Agree that costs should recognise the need to balance effective monitoring activity with ensuring that unnecessary burdens are not imposed on operators. Acknowledge the need to consider further whether exemptions should apply to smaller quarries with minimal output. |
CONCLUSION
28. The Executive is grateful to all those that responded to the consultation paper. The comments made will be taken into account as the Executive finalise its proposals. The next stage will be to seek a general power in legislation that will enable Regulations to be made which set out a framework for a fees regime in line with the Executive's conclusions above. Subject to the necessary resources and Parliamentary time being made available, the Executive will consider bringing forward legislation in the course of the current Parliament. Final proposals will be informed by ongoing research and further consultation with stakeholders is likely.
29. In the meantime, planning authorities should ensure effective arrangements are in place to monitor the conditions attached to new planning permissions. These should take account of the circumstances of specific proposals and the need to provide for liaison with local communities. The arrangements needed should be agreed between planning authorities and operators, in conjunction with local communities, before planning permission is granted. This principle should be applied when considering extensions to existing sites.
ANNEX A
List of respondents
Aberdeen City Council (official response)
Aberdeenshire Council
Aggregate Industries
Argyll and Bute Council
British Aggregates Association
City of Edinburgh Council
Clackmannanshire Council
Coalfield Communities Campaign (Scottish Region)
Comhairle nan Eilean Siar
Confederation of UK Coal Producers
Dalgleish Associates
East Lothian Council
Ennstone Thistle Limited
Environmental Concern Orkney
Fife Council
Friends of the Earth Scotland
Gavin Lawrie Limited
LCS Geoform
Lovie Limited
Mining & Environmental Group Ayrshire
North Lanarkshire Council
Orkney Islands Council
Patersons Quarries Limited
Quarry Products Association
RSPB Scotland
Scottish Coal Company Limited
Scottish Natural Heritage
Scottish Opencast Action Group
South Lanarkshire Council
Stirling Council (Planning Enforcement Officer)
Tarmac Northern Limited
West Lothian Council