Town and Country Planning (Scotland) Act 1997

Section 71(8).

SCHEDULE 8 Old mineral workings and permissions

Part I Requirements relating to discontinuance of mineral working

Orders requiring discontinuance of mineral working

1 (1) If, having regard to the development plan and to any other material considerations, it appears to a planning authority that it is expedient in the interests of the proper planning of their district (including the interests of amenity)—

(a) that any use of land for development consisting of the winning and working of minerals or involving the deposit of refuse or waste materials in, on or under the land should be discontinued, or that any conditions should be imposed on the continuance of that use of land,

(b) that any buildings or works on land so used should be altered or removed, or

(c) that any plant or machinery used for the winning and working of or depositing of minerals should be altered or removed,

the planning authority may by order require the discontinuance of that use, or impose such conditions as may be specified in the order on the continuance of it or, as the case may be, require such steps as may be so specified to be taken for the alteration or removal of the buildings or works or plant or machinery.

(2) Subsections (2) to (5) and (7) of section 71 and section 72 apply to orders under this paragraph as they apply to orders under section 71.

2 (1) Where development consisting of the winning and working of minerals or involving the deposit of refuse or waste materials is being carried out in, on or under any land, the conditions which an order under paragraph 1 may impose include a restoration condition.

(2) If—

(a) such an order includes a restoration condition, or

(b) a restoration condition has previously been imposed in relation to the land by virtue of any provision of this Act,

the order may also include any such aftercare condition as the planning authority think fit.

(3) An order under paragraph 1 may grant planning permission for any development of the land to which the order relates, subject to such conditions as may be—

(a) required by paragraph 1 of Schedule 3, or

(b) specified in the order.

(4) In a case where—

(a) the use specified in an aftercare condition is a use for agriculture,

(b) the land was in use for agriculture immediately before the development began or had previously been used for agriculture and had not been used for any authorised purpose since its use for agriculture ceased, and

(c) the planning authority is aware of or can readily ascertain the physical characteristics of the land when it was last used for agriculture,

the land is brought to the required standard when its physical characteristics are restored, so far as it is practicable to do so, to what they were when it was last used for agriculture.

(5) In any other case where the use specified in an aftercare condition is a use for agriculture, the land is brought to the required standard when it is reasonably fit for that use.

Prohibition of resumption of mineral working

3 (1) Where it appears to the planning authority that development of land consisting of the winning and working of minerals or involving the depositing of mineral waste has occurred, but the winning and working or depositing has permanently ceased, the planning authority may by order—

(a) prohibit the resumption of the winning and working or the depositing, and

(b) impose, in relation to the site, any such requirement as is specified in sub-paragraph (3).

(2) The planning authority may assume that the winning and working or the depositing has permanently ceased only when—

(a) no winning and working or depositing has occurred, to any substantial extent, at the site for a period of at least 2 years, and

(b) it appears to the planning authority, on the evidence available to them at the time when they make the order, that resumption of the winning and working or the depositing to any substantial extent at the site is unlikely.

(3) The requirements mentioned in sub-paragraph (1) are—

(a) a requirement to alter or remove plant or machinery which was used for the purpose of the winning and working or the depositing or for any purpose ancillary to that purpose,

(b) a requirement to take such steps as may be specified in the order, within such period as may be so specified, for the purpose of removing or alleviating any injury to amenity which has been caused by the winning and working or depositing, other than injury due to subsidence caused by underground mining operations,

(c) a requirement that any condition subject to which planning permission for the development was granted or which has been imposed by virtue of any provision of this Act shall be complied with, and

(d) a restoration condition.

(4) If—

(a) an order under this paragraph includes a restoration condition, or

(b) a restoration condition has previously been imposed in relation to the site by virtue of any provision of this Act,

the order may include any such aftercare condition as the planning authority think fit.

(5) Paragraphs 2(3) to (9), 3(3) and (4) and 4 to 6 of Schedule 3 apply in relation to an aftercare condition imposed under this paragraph as they apply to such a condition imposed under paragraph 2 of that Schedule.

(6) In a case where—

(a) the use specified in an aftercare condition is a use for agriculture,

(b) the land was in use for agriculture immediately before development consisting of the winning and working of minerals began to be carried out in, on, or under it or had previously been used for any authorised purpose since its use for agriculture ceased, and

(c) the planning authority is aware of or can readily ascertain the physical characteristics of the land when it was last used for agriculture,

the land is brought to the required standard when its physical characteristics are restored, so far as it is practicable to do so, to what they were when it was last used for agriculture.

(7) In any other case where the use specified is a use for agriculture the land is brought to the required standard when it is reasonably fit for that use.

4 (1) An order under paragraph 3 shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient.

(2) Where a planning authority submit such an order to the Secretary of State for his confirmation under this paragraph, the authority shall serve notice of the order—

(a) on any person who is an owner or occupier of any of the land to which the order relates, and

(b) on any other person who in their opinion will be affected by it.

(3) The notice shall specify the period within which any person on whom the notice is served may require the Secretary of State to give him an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for that purpose.

(4) If within that period such a person so requires, the Secretary of State shall, before confirming the order, give such an opportunity both to that person and to the planning authority.

(5) The period referred to in sub-paragraph (3) must not be less than 28 days from the service of the notice.

(6) Where an order under paragraph 3 has been confirmed by the Secretary of State, the planning authority shall serve a copy of the order on every person who was entitled to be served with notice under sub-paragraph (2).

(7) When an order under paragraph 3 takes effect any planning permission for the development to which the order relates shall cease to have effect.

(8) Sub-paragraph (7) is without prejudice to the power of the planning authority, on revoking the order, to make a further grant of planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste.

Orders after suspension of winning and working of minerals

5 (1) Where it appears to the planning authority—

(a) that development of land—

(i) consisting of the winning and working of minerals, or

(ii) involving the depositing of mineral waste,

has occurred, but

(b) the winning and working or depositing has been temporarily suspended,

the planning authority may by order (in this Act referred to as a “suspension order”) require that steps be taken for the protection of the environment.

(2) The planning authority may assume that the winning and working or the depositing has been temporarily suspended only when—

(a) no such winning and working or depositing has occurred, to any substantial extent, at the site for a period of at least 12 months, but

(b) it appears to the planning authority, on the evidence available to them at the time when they make the order, that a resumption of such winning and working or depositing to a substantial extent is likely.

(3) In this Act “steps for the protection of the environment” means steps for the purpose of—

(a) preserving the amenities of the area in which the land in, on or under which the development was carried out is situated during the period while the winning and working or the depositing is suspended,

(b) protecting that area from damage during that period, or

(c) preventing any deterioration in the condition of the land during that period.

(4) A suspension order shall specify a period, commencing with the date on which it is to take effect, within which any required step for the protection of the environment is to be taken and may specify different periods for the taking of different steps.

Supplementary suspension orders

6 (1) At any time when a suspension order is in operation the planning authority may by order direct—

(a) that steps for the protection of the environment shall be taken in addition to or in substitution for any of the steps which the suspension order or a previous order under this sub-paragraph specified as required to be taken, or

(b) that the suspension order or any order under this sub-paragraph shall cease to have effect.

(2) An order under sub-paragraph (1) is in this Act referred to as a “supplementary suspension order”.

Confirmation and coming into operation of suspension orders

7 (1) Subject to sub-paragraph (2) and without prejudice to paragraph 8, a suspension order or a supplementary suspension order shall not take effect unless it is confirmed by the Secretary of State, either without modification or subject to such modifications as he considers expedient.

(2) A supplementary suspension order revoking a suspension order or a previous supplementary suspension order and not requiring that any fresh step shall be taken for the protection of the environment shall take effect without confirmation.

(3) Sub-paragraphs (2) to (5) of paragraph 4 shall have effect in relation to a suspension order or supplementary suspension order submitted to the Secretary of State for his confirmation as they have effect in relation to an order submitted to him for his confirmation under that paragraph.

(4) Where a suspension order or supplementary suspension order has been confirmed by the Secretary of State, the planning authority shall serve a copy of the order on every person who was entitled to be served with notice of the order by virtue of sub-paragraph (3).

Registration of suspension orders

8 An order made under paragraph 3, 5 or 6 shall not take effect until it is registered either—

(a) in a case where the land affected by the order is registered in that Register, in the Land Register for Scotland, or

(b) in any other case, in the appropriate division of the General Register of Sasines.

Review of suspension orders

9 (1) It shall be the duty of a planning authority—

(a) to undertake in accordance with the following provisions of this paragraph reviews of suspension orders and supplementary suspension orders which are in operation in their district, and

(b) to determine whether they should make in relation to any land to which a suspension order or supplementary suspension order applies—

(i) an order under paragraph 3, or

(ii) a supplementary suspension order.

(2) The first review of a suspension order shall be undertaken not more than 5 years from the date on which the order takes effect.

(3) Each subsequent review shall be undertaken not more than 5 years after the previous review.

(4) If a supplementary suspension order is in operation for any part of the area for which a suspension order is in operation, they shall be reviewed together.

(5) If a planning authority have made a supplementary suspension order which requires the taking of steps for the protection of the environment in substitution for all the steps required to be taken by a previous suspension order or supplementary suspension order, the authority shall undertake reviews of the supplementary suspension order in accordance with sub-paragraphs (6) and (7).

(6) The first review shall be undertaken not more than 5 years from the date on which the order takes effect.

(7) Each subsequent review shall be undertaken not more than 5 years after the previous review.

Old mining permissions

10 (1) In this paragraph and Part II of this Schedule, “old mining permission” means any planning permission for development—

(a) consisting of the winning and working of minerals, or

(b) involving the depositing of mineral waste,

which is deemed to have been granted by virtue of paragraph 77 of Schedule 22 to the 1972 Act (development authorised under interim development orders after 10th November 1943).

(2) An old mining permission shall, if an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is finally determined, have effect as from the final determination as if granted on the terms required to be registered.

(3) If no such development has, at any time in the period of 2 years ending with 16th May 1991, been carried out to any substantial extent anywhere in, on or under the land to which an old mining permission relates, that permission shall not authorise any such development to be carried out after 24 January 1992 unless—

(a) the permission has effect in accordance with sub-paragraph (2), and

(b) the development is carried out after such an application is finally determined.

(4) An old mining permission shall—

(a) if no application for the registration of the permission is made under Part II of this Schedule, cease to have effect on the day following the last date on which such an application may be made, and

(b) if such an application is refused, cease to have effect on the day following the date on which the application is finally determined.

(5) An old mining permission shall, if—

(a) such an application is granted, but

(b) an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is required to be served before the end of any period and is not so served,

cease to have effect on the day following the last date on which the application to determine those conditions may be served.

(6) Subject to sub-paragraph (3), this paragraph—

(a) shall not affect any development carried out under an old mining permission before an application under Part II of this Schedule to determine the conditions to which the permission is to be subject is finally determined or, as the case may be, the date on which the permission ceases to have effect, and

(b) shall not affect any order made or having effect as if made under paragraphs 1 to 9 and 11.

Resumption of mineral working after suspension order

11 (1) Subject to sub-paragraph (2), nothing in a suspension order or a supplementary suspension order shall prevent the recommencement of development consisting of the winning and working of minerals or involving the depositing of mineral waste at the site in relation to which the order has effect.

(2) No person shall recommence such development without first giving the planning authority notice of his intention to do so.

(3) A notice under sub-paragraph (2) shall specify the date on which the person giving the notice intends to recommence the development.

(4) The planning authority shall revoke the order if the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect.

(5) If the authority do not revoke the order before the end of the period of 2 months from the date specified in the notice under sub-paragraph (2), the person who gave that notice may apply to the Secretary of State for the revocation of the order.

(6) Notice of an application under sub-paragraph (5) shall be given by the applicant to the planning authority.

(7) If he is required to do so by the person who gave the notice or by the planning authority, the Secretary of State shall, before deciding whether to revoke the order, give him and the planning authority an opportunity of appearing before, and being heard by, a person appointed by the Secretary of State for the purpose.

(8) If the Secretary of State is satisfied that the winning and working of minerals or the depositing of mineral waste has recommenced to a substantial extent at the site in relation to which the order has effect, he shall revoke the order.

(9) If the Secretary of State revokes an order by virtue of sub-paragraph (8), he shall give notice of its revocation—

(a) to the person who applied to him for the revocation, and

(b) to the planning authority.

Default powers of Secretary of State

12 (1) If it appears to the Secretary of State that it is expedient that any order should be made under paragraph 1, 3, 5 or 6, he may himself make such an order.

(2) Such an order made by the Secretary of State shall have the same effect as if it had been made by the planning authority and confirmed by the Secretary of State.

(3) The Secretary of State shall not make such an order without consulting the planning authority.

(4) Where the Secretary of State proposes to make an order under paragraph 1 he shall serve a notice of the proposal on the planning authority.

(5) The notice shall specify the period (which must not be less than 28 days from the date of its service) within which the authority may require an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(6) If within that period the authority so require, the Secretary of State shall, before making the order, give the authority such an opportunity.

(7) The provisions of this Schedule and of any regulations made under this Act with respect to the procedure to be followed in connection with the submission by the planning authority of any order under paragraph 1, 3, 5 or 6, as the case may be, its confirmation by the Secretary of State and the service of copies of it as confirmed shall have effect, subject to any necessary modifications, in relation to any proposal by the Secretary of State to make such an order by virtue of sub-paragraph (1), its making by him and the service of copies of it.

Part II Registration of Old Mining Permissions

Application for registration

13 (1) Any person who is an owner of any land to which an old mining permission relates, or is entitled to an interest in a mineral to which such a permission relates, may apply to the planning authority for the permission to be registered.

(2) The application must specify the development which the applicant claims is authorised by the permission, including the land to which the permission relates, and the conditions (if any) to which the permission is subject.

(3) The application must be served on the planning authority before the end of the period of 6 months beginning on 24 January 1992.

(4) On an application under this paragraph, the planning authority must—

(a) if they are satisfied that (apart from paragraph 10(3)) the permission authorises development consisting of the winning and working of minerals or involving the depositing of mineral waste, ascertain—

(i) the area of land to which the permission relates, and

(ii) the conditions (if any) to which the permission is subject,

and grant the application, and

(b) in any other case, refuse the application.

(5) Where—

(a) application has been made under this paragraph, but

(b) the planning authority have not given the applicant notice of their determination within the period of 3 months beginning with the service of notice of the application (or within such extended period as may at any time be agreed upon in writing between the applicant and the authority),

the application is to be treated for the purposes of paragraph 10 and this Part of this Schedule as having been refused by the authority.

Determination of conditions

14 (1) The conditions to which an old mining permission is to be subject—

(a) may include any conditions which may be imposed on a grant of planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste,

(b) may be imposed in addition to, or in substitution for, any conditions ascertained under paragraph 13(4)(a), and

(c) must include a condition that the winning and working of minerals or depositing of mineral waste must cease not later than 21st February 2042.

(2) Where an application for the registration of an old mining permission has been granted, any person who is an owner of any land to which the permission relates, or is entitled to an interest in a mineral to which the permission relates, may apply to the planning authority to determine the conditions to which the permission is to be subject.

(3) The application must set out proposed conditions.

(4) The application must be served on the planning authority—

(a) after the date mentioned in sub-paragraph (5), and

(b) except where paragraph 10(3) applies, before the end of the period of 12 months beginning with that date or such extended period as may at any time be agreed upon in writing between the applicant and the authority.

(5) The date referred to in sub-paragraph (4) is—

(a) the date on which the application for registration is granted by the planning authority, if no appeal is made to the Secretary of State under paragraph 17, and

(b) in any other case, the date on which the application for registration is finally determined.

(6) On an application under this paragraph—

(a) the planning authority must determine the conditions to which the permission is to be subject, and

(b) if, within the period of 3 months beginning with the service of notice of the application (or within such extended period as may at any time be agreed upon in writing between the applicant and the authority) the authority have not given the applicant notice of their determination, the authority shall be treated for the purposes of paragraph 10 and this Part of this Schedule as having determined that the permission is to be subject to the conditions set out in the application.

(7) The condition to which an old mining permission is to be subject by reason of sub-paragraph (1)(c) is not to be regarded for the purposes of the planning Acts as a condition such as is mentioned in section 41(1)(b) (planning permission granted for a limited period).

(8) This paragraph does not apply to an old mining permission which has ceased to have effect since the application under paragraph 13 was granted.

Registration

15 (1) Where an application for the registration of an old mining permission is granted, the permission must be entered in the appropriate part of the register kept under section 36 and the entry must specify the area of land ascertained under paragraph 13(4)(a).

(2) Where an application to determine the conditions to which an old mining permission is to be subject is finally determined, the conditions must be entered in the appropriate part of that register.

(3) The matters required to be entered in the register under this paragraph must be entered as soon as reasonably practicable.

General provisions about applications

16 (1) An application under paragraph 13 or 14 is an application which is—

(a) made on an official form, and

(b) accompanied by an appropriate certificate.

(2) The applicant must, so far as reasonably practicable, give the information required by the form.

(3) Where the planning authority receive an application under paragraph 13 or 14, they must as soon as reasonably practicable give to the applicant a written acknowledgement of the application.

(4) Where the planning authority determine an application under either of those paragraphs, they must as soon as reasonably practicable give written notice of their determination to the applicant.

(5) An appropriate certificate is such a certificate—

(a) as would be required under sections 34 or 35 to accompany the application if it were an application for planning permission for development consisting of the winning and working of minerals or involving the depositing of mineral waste, but

(b) with such modifications as are required for the purposes of this Part of this Schedule.

(6) Sections 34(3) and (4) and 35(5) (offences) shall also have effect in relation to any certificate purporting to be an appropriate certificate.

Right of appeal

17 (1) Where the planning authority—

(a) refuse an application under paragraph 13, or

(b) in granting such an application, ascertain an area of land, or conditions, which differ from those specified in the application,

the applicant may appeal to the Secretary of State.

(2) Where, on an application under paragraph 14, the planning authority determine conditions that differ in any respect from the conditions set out in the application, the applicant may appeal to the Secretary of State.

(3) An appeal under this paragraph must be made by giving notice of appeal to the Secretary of State.

(4) In the case of an appeal under sub-paragraph (1), the notice must be given to the Secretary of State before the end of the period of 3 months beginning with the determination or, in the case of an application treated as refused by virtue of paragraph 13(5), beginning at the end of the period or extended period referred to in paragraph 13(5)(b).

(5) In the case of an appeal under sub-paragraph (2), the notice must be given to the Secretary of State before the end of the period of 6 months beginning with the determination.

(6) A notice of appeal under this paragraph is a notice which—

(a) is made on an official form, and

(b) is accompanied by an appropriate certificate.

(7) The appellant must, so far as reasonably practicable, give the information required by the form.

(8) Paragraph 16(5) and (6) shall apply for the purposes of sub-paragraph (7) as it applies for the purposes of paragraph 16(1).

Determination of appeal

18 (1) On an appeal under paragraph 17 the Secretary of State may—

(a) allow or dismiss the appeal, or

(b) reverse or vary any part of the decision of the planning authority (whether the appeal relates to that part of it or not),

and may deal with the application as if it had been made to him in the first instance.

(2) Before determining such an appeal the Secretary of State must, if either the appellant or the planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose.

(3) If at any time before or during the determination of such an appeal it appears to the Secretary of State that the appellant is responsible for undue delay in the progress of the appeal, he may—

(a) give the appellant notice that the appeal will be dismissed unless the appellant takes, within the period specified in the notice, such steps as are specified in the notice for the expedition of the appeal, and

(b) if the appellant fails to take those steps within that period, dismiss the appeal accordingly.

(4) The decision of the Secretary of State on such an appeal shall be final.

Reference of applications to Secretary of State

19 (1) The Secretary of State may give directions requiring applications under this Part of this Schedule to any planning authority to be referred to him for determination instead of being dealt with by the authority.

(2) The direction may relate either to a particular application or to applications of a class specified in the direction.

(3) Where an application is referred to him under this paragraph—

(a) subject to paragraph (b) and sub-paragraph (4), the following provisions of this Schedule—

(i) paragraph 13(1) to (4),

(ii) paragraph 14(1) to (6)(a), (7) and (8),

(iii) paragraphs 15 and 16, and

(iv) paragraphs 20 to 22,

shall apply, with any necessary modifications, as they apply to applications which fall to be determined by the planning authority,

(b) before determining the application the Secretary of State must, if either the applicant or the planning authority so wish, give each of them an opportunity of appearing before and being heard by a person appointed by the Secretary of State for the purpose, and

(c) the decision of the Secretary of State on the application shall be final.

(4) Where an application under paragraph 13 is so referred to him, paragraph 14(5) shall apply as if for paragraphs (a) and (b) there were substituted “the date on which the application for registration is finally determined”.

Two or more applicants

20 (1) Where a person has served an application under paragraph 13 or 14 in respect of an old mining permission—

(a) he may not serve any further application under the paragraph in question in respect of the same permission, and

(b) if the application has been determined, whether or not it has been finally determined, no other person may serve an application under the paragraph in question in respect of the same permission.

(2) Where—

(a) a person has served an application under paragraph 13 or 14 in respect of an old mining permission, and

(b) another person duly serves an application under the paragraph in question in respect of the same permission,

then for the purpose of the determination of the applications and any appeal against such a determination, this Part of this Schedule shall have effect as if the applications were a single application served on the date on which the later application was served and references to the applicant shall be read as references to either or any of the applicants.

Application of provisions relating to planning permission

21 (1) Subject to paragraph 15, section 36 and any provision of regulations or a development order made by virtue of that section shall have effect with any necessary modifications as if references to applications for planning permission included applications under paragraph 13 or 14.

(2) Where the planning authority are not the authority required to keep the register under that section, the planning authority must provide the authority required to keep the register with such information and documents as that authority requires to comply with paragraph 15 and with that section as applied by this paragraph.

(3) Sections 237 and 239 (validity of certain decisions and proceedings for questioning their validity) shall have effect as if the action mentioned in section 237(3) included any decision of the Secretary of State on an appeal under paragraph 17 or on an application referred to him under paragraph 19.

Interpretation

22 (1) In this Part of this Schedule—

• “official form” means, in relation to an application or appeal, a document supplied by or on behalf of the Secretary of State for use for the purpose in question, and

• “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 portion of which is not less than 7 years.

(2) For the purposes of paragraph 10 and this Part of this Schedule, an application under paragraph 13 or 14 is finally determined when the following conditions are met—

(a) the proceedings on the application, including any proceedings on or in consequence of an application under section 239, have been determined, and

(b) any time for appealing under paragraph 17, or applying or further applying under that section (where there is a right to do so), has expired.