The Town and Country Planning (General Development Procedure) (Scotland) Amendment (No.2) Order 1994

Statutory Instruments

1994 No. 3293 (S.192)

TOWN AND COUNTRY PLANNING, SCOTLAND

The Town and Country Planning (General Development Procedure) (Scotland) Amendment (No.2) Order 1994

Made

15th December 1994

Laid before Parliament

29th December 1994

Coming into force

3rd February 1995

The Secretary of State, in exercise of the powers conferred on him by sections 21(1), (2) and (3), 22(1)(b) and (c) and (2), 24(1), (2), (3) and (7), 26(3) and (3A), 28(1)(c), (d) and (dd), 32(4), 33(2) and (5), 34 and 273(3) of the Town and Country Planning (Scotland) Act 1972(1) and of all other powers enabling him in that behalf, hereby makes the following Order:

Citation, commencement and interpretation

1.—(1) This Order may be cited as the Town and Country Planning (General Development Procedure) (Scotland) Amendment (No.2) Order 1994 and shall come into force on 3rd February 1995.

(2) In this Order “the 1992 Order” means the Town and Country Planning (General Development Procedure) (Scotland) Order 1992(2).

Amendment of interpretation article

2.  In article 2(1) of the 1992 Order (interpretation)—

(a) after the definition of “the Fees Regulations” insert—

““the General Permitted Development Order” means the Town and Country Planning (General Permitted Development) (Scotland) Order 1992(3);”;

(b) after the definition of “landscaping” insert—

““licensed premises” means premises licensed for the sale of alcoholic liquor pursuant to the provisions of the Licensing (Scotland) Act 1976(4) or premises licensed pursuant to the provisions of the Betting, Gaming and Lotteries Act 1963(5);”;

(c) after the definition of “listed building” insert—

““local advertisement” means the publication of a notice in a local newspaper circulating in the locality in which the land to which the application relates is situated;”;

(d) after the definition of “outline planning permission” insert—

““public notice” means posting a notice firmly to some object sited and displayed so as to be easily visible to and legible by members of the public;”;

(e) after the definition of “special road” insert—

• ““toll order” has the same meaning as in Part II of the New Roads and Street Works Act 1991(6);

• “toll road” means a road which is the subject of a toll order;”.

Notices to owners and agricultural tenants

3.  For article 8 of the 1992 Order substitute—

“Notices to owners and agricultural tenants under section 24

8.— (1) Notice given by an applicant for the purposes of this article shall be in the appropriate form set out in Schedule 3.

(2) Subject to paragraph (3), an applicant for planning permission under article 3 or 4 shall give notice of the application—

(a) by serving notice on every person (other than the applicant) who at the beginning of the prescribed period is the owner of any of the land to which the application relates, or an agricultural tenant, and whose name and address is known to the applicant; and

(b) having taken reasonable steps to ascertain the name and address of every such person, but having been unable to do so, by local advertisement after the beginning of the prescribed period.

(3) In the case of a minerals application, instead of giving notice in the manner provided for by paragraph (2), the applicant shall give notice of the application—

(a) by serving notice on every person (other than the applicant) whom the applicant knows is, at the beginning of the prescribed period, the owner of any of the land to which the application relates, or an agricultural tenant, and whose name and address is known to the applicant;

(b) by local advertisement after the beginning of the prescribed period; and

(c) by public notice in at least one place in the district of the planning authority to which the application is being made, leaving the notice in position for not less than 7 days in the period of 21 days immediately preceding the making of the application to the planning authority.

(4) The notice required by paragraph (3)(c) shall (in addition to any other matters required to be contained in it) name a place within the district of the planning authority to whom the application is made where a copy of the application for planning permission, and of all plans and other documents submitted with it, will be open to inspection by the public at all reasonable hours during such period as may be specified in the notice.

(5) At any time before determining a minerals application, the planning authority may in writing direct the applicant to give further notice by public notice in such places in its district not exceeding 4 in number as may be specified in the direction.

(6) Where a direction under paragraph (5) is given, the planning authority shall not grant the application until the applicant has provided the authority with a certificate stating—

(a) that he has complied with the direction; and

(b) that every notice required by the direction has been in position for not less than 7 days in the period of 21 days immediately preceding the date on which he lodged the certificate with the planning authority.

(7) The applicant shall not be treated as having failed to satisfy the requirements of paragraphs (3)(c) or (6) if the notice is, without any fault or intention of his, removed, obscured or defaced before the period of 7 days referred to in those paragraphs has elapsed, if he has taken reasonable steps for its protection and, if need be, replacement.

(8) The applicant shall issue a certificate in one of the forms set out in Schedule 1—

(a) stating whether or not the land or part of the land to which the application relates constitutes or forms part of an agricultural holding; and

(b) stating, as appropriate—

(i) that at the beginning of the prescribed period no person (other than the applicant) was the owner of any of the land to which the application relates or an agricultural tenant;

(ii) that the applicant has served notice on every person (other than the applicant) who, at the beginning of the prescribed period, was the owner of any of the land to which the application relates or an agricultural tenant, setting out the name of every such person and the address at which and the date on which each notice was served;

(iii) that the applicant is unable to issue a certificate in accordance with the two preceding sub-paragraphs, that he has been unable to serve notice on any of the persons mentioned in the last preceding paragraph or, as the case may be, that he has served notice on such one or more of those persons as are specified in the certificate (setting out their names and the address at which and the date on which each notice was served), that he has taken reasonable steps (specifying them) to ascertain the names and addresses of those persons, or the remainder of them as the case may be, that he has been unable to do so and that he has given notice by local advertisement;

(iv) in the case of a minerals application—

(aa) that at beginning of the prescribed period no person (other than the applicant) was the owner of any of the land to which the application relates or an agricultural tenant;

(bb) that the applicant has served notice on every person (other than the applicant) whom the applicant knows was, at the beginning of the prescribed period, the owner of any of the land to which the application relates or an agricultural tenant, and whose name and address is known to him (setting out the name of every such person, and the address at which and the date on which each notice was served) and that he has not omitted to serve notice on any such person whose name and address is known to him;

(cc) that the applicant has complied with paragraphs (3)(b) and (c); and

(dd) where the applicant has cause to rely on paragraph (7), the relevant circumstances.

(9) A planning authority shall, in determining an application for planning permission, take into account any representations by any person who satisfies them that he is an owner of any land to which the application relates or an agricultural tenant made, where any notice of the application has been—

(a) served on an owner of any of the land to which the application relates or an agricultural tenant under paragraph (2)(a) or (3)(a), within 21 days beginning with the date when the notice was served on that person;

(b) given by local advertisement under paragraph (2)(b) or (3)(b), within 21 days beginning with the date on which the notice was published; or

(c) given by public notice under paragraphs (3)(c) or (5), within 21 days beginning with the date when the notice was first displayed by public notice.

(10) A planning authority shall give notice of their decision to every person who has made representations which the authority are required to take into account in accordance with the preceding paragraph.

(11) The applications prescribed for the purposes of paragraph (b) of the definition of “owner” in section 24(7) of the Act are minerals applications, and the minerals prescribed for the purposes of that paragraph are any minerals other than oil, gas, coal, gold or silver.

(12) In this article—

“agricultural holding” has the meaning given to it by section 24(7) of the Act;

“agricultural tenant” means the tenant of an agricultural holding any part of which is comprised in the land to which an application relates;

“minerals application” means an application for planning permission for development consisting of the winning and working of minerals by underground working;

“prescribed period” means the period of 21 days ending with the date of the application.”.

Time periods for decision

4.  In article 14 of the 1992 Order—

(a) in paragraph (1) for “Without prejudice to sections 24(4) and 25(3) of the Act” substitute “Without prejudice to section 25(3) of the Act and subject to paragraphs (1A) and (1B)”;

(b) after paragraph (1) insert—

“(1A) Subject to paragraph (1B) where an application for planning permission is accompanied by a certificate under article 8(8) (other than a certificate in form 1 in Schedule 1), the application shall not be determined until the expiry of a period of 21 days beginning with the date appearing from the certificate to be the last date of service of any notice mentioned in the certificate, or the date of publication, or, as the case may be, posting of a notice as therein mentioned, whichever is the later.

(1B) Where a direction under article 8(5) is given, the application shall not be determined until the expiry of a period of 21 days beginning with the date when the certificate under article 8(6) was lodged with the planning authority.”;

(c) for paragraph (2) substitute—

“(2) Where a planning authority has received—

(a) a valid application under any of articles 3 to 6;

(b) an application for its determination that its approval is required as a condition of permission granted by the General Permitted Development Order and the planning authority has determined that its approval is required; or

(c) an application for any other consent, agreement or approval required by a condition attached to a grant of planning permission,

the period within which the authority shall give notice to an applicant of their decision or determination or referral of the application to the Secretary of State or regional planning authority shall be two months commencing on the date of receipt of the application, or (except where the applicant has already given notice of appeal to the Secretary of State) such extended period as may be agreed upon in writing between the applicant and the planning authority.”;

(d) in paragraph (3)(a) after “any certificates required by the Act” insert “or any details required under the General Permitted Development Order”.

Consultations before grant of planning permission

5.  In article 15(1) of the 1992 Order—

(a) for sub-paragraph (d) substitute—

“Scottish Natural Heritage where—

(i) the development may affect a historic garden or designed landscape;

(ii) the development may affect an area of special interest notified to the planning authority by Scottish Natural Heritage in accordance with section 28 of the Wildlife and Countryside Act 1981(7); or

(iii) the development consists of or includes the winning and working of peat other than for the domestic requirements of the applicant;”;

(b) for sub-paragraph (f) substitute—

“(f) the Health and Safety Executive where the development is within an area which has been notified to the planning authority by the Health and Safety Executive for the purpose of this provision because of the presence within the vicinity of toxic, highly reactive, explosive or inflammable substances and either involves the provision of—

(i) residential accommodation;

(ii) more than 250 square metres of retail floor space;

(iii) more than 500 square metres of office floor space; or

(iv) more than 750 square metres of floor space to be used for an industrial process,

or is otherwise likely to result in a material increase in the number of persons working within or visiting the notified area;”;

(c) delete sub-paragraph (g);

(d) for sub-paragraph (i) substitute—

“(i) the roads authority concerned, where the development involves—

(i) the formation, laying out or alteration of any means of access to, or is likely to create or attract traffic which will result in a material increase in the volume of traffic entering or leaving, a road (other than a trunk road) for which the planning authority are not also the roads authority; or

(ii) the formation, laying out or alteration of any means of access to land affording access to a toll road;”;

(e) in each of sub-paragraphs (j)(v) and (j)(vi) at the end insert the words “or its setting”; and

(f) at the end of sub-paragraph (j) insert—

“(vii) development which consists of or includes the winning and working of peat other than for the domestic requirements of the applicant;”.

Consequential and miscellaneous amendments

6.—(1) In article 3 of the 1992 Order—

(a) for paragraph (c)(iii) substitute—

“(iii) one or other of the certificates required under article 8(8) in the appropriate form as set out in Schedule 1;”; and

(b) in paragraph (c)(iv) for “sub-paragraph (4)” substitute “paragraph (5)”.

(2) In article 4 of the 1992 Order, for paragraph (2)(c)(iii) substitute—

“(iii) one or other of the certificates required under article 8(8) in the appropriate form as set out in Schedule 1;”.

(3) In article 5 of the 1992 Order, in paragraph (1) at the end, for the words “article 3 or article 4” substitute “the provisions of article 3 or article 4 other than article 3(c)(iii) and (v) and article 4(c)(iii) and (v)”.

(4) In article 9 of the 1992 Order, in paragraph (1) for “section 24 of the Act” substitute “article 8”.

(5) In article 12 of the 1992 Order, in paragraph (7) for “section 24(2) of the Act (notification of applications to owners and agricultural tenants)” substitute “article 8(2)(b) or (3)(b)”.

(6) In article 16(a) of the 1992 Order before “is exempted” insert “in accordance with article 2(3) of Council Directive No.85/337/EEC(8)”.

(7) In article 21 of the 1992 Order insert at the beginning “—(1)” and at the end insert—

“(2) Paragraphs (9) and (10) of article 8 apply to applications referred to the Secretary of State as mentioned in the preceding paragraph, as if the references to a planning authority were to the Secretary of State.”.

(8) In article 23 of the 1992 Order—

(a) in paragraph (1)(a) after “this Order” insert “or the General Permitted Development Order”;

(b) in paragraph (2)(b) at the end insert “or (2A)”;

(c) before paragraph (5) insert—

“(4) The provisions of article 8 shall apply, with any necessary modifications, in relation to an appeal to the Secretary of State as they apply in relation to an application for planning permission which falls to be determined by the planning authority.”;

(d) in paragraph (5)(a)(ii) for “section 24 of the Act” substitute “article 8”; and

(e) for sub-paragraph (5)(d) substitute—

“(d) a certificate under article 8(8) as applied by paragraph (4) above;”.

(9) For article 25 of the 1992 Order substitute—

“25.   In relation to appeals, the notices for the purposes of article 8 as applied by article 23(4) shall be in the forms set out in Schedule 10.”.

(10) For Schedule 1 to the 1992 Order substitute Schedule 1 set out in the Schedule to this Order.

(11) In Schedule 2 to the 1992 Order in the certificate headed “Certificate under article 9(5)(a)(i)” before the words “Delete where inappropriate” insert—

“

”.

(12) In Schedule 3 to the 1992 Order—

(a) for “Requisite notices under section 24” substitute “Notices under article 8”;

(b) for “Town and Country Planning (Scotland) Act 1972” where it twice occurs substitute “Town and Country Planning (General Development Procedure) (Scotland) Order 1992”;

(c) for “Requisite notice under section 24(1)” substitute “Notice under article 8(2)(a) and (3)(a)”;

(d) for “Requisite notice under section 24(2)” substitute “Notice under article 8(2)(b), (3)(b) and (3)(c)”; and

(e) after “local newspaper” add “or for public notice”.

(13) In Schedule 10 to the 1992 Order—

(a) for “Town and Country Planning (Scotland) Act 1972” where it twice occurs substitute “Town and Country Planning (General Development Procedure) (Scotland) Order 1992”;

(b) for “Requisite notice under sections 24(1) and 33” substitute “Notice under articles 8(2)(a) and (3)(a) and 23(4)”;

(c) for “Requisite notice under sections 24(2) and 33” substitute “Notice under articles 8(2)(b), (3)(b), (3)(c) and 23(4)”; and

(d) after “local newspaper” insert “or for public notice”.

Allan Stewart

Parliamentary Under Secretary of State, Scottish Office

St Andrew’s House,

Edinburgh

15th December 1994

Article 6(10)

SCHEDULE

Articles 3(c)(iii), 4(2)(c)(iii) and 8(8)

“SCHEDULE 1 CERTIFICATES UNDER ARTICLE 8(8)

TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) ORDER 1992

>TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) ORDER 1992

>TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) ORDER 1992

FORM 4 TOWN AND COUNTRY PLANNING (GENERAL DEVELOPMENT PROCEDURE) (SCOTLAND) ORDER 1992

Minerals application

”

Explanatory Note

(This note is not part of the Regulations)

This Order amends the Town and Country Planning (General Development Procedure) (Scotland) Order 1992. The main changes are—

(a) extension of article 8 to include detailed provisions relating to notification of owners and agricultural tenants which were previously set out in section 24 of the 1972 Act. Various consequential amendments are also made including substitution of a new Schedule 1 (certificates under article 8(8)) and updating of the notices in Schedules 3 and 10. The revised version of section 24 introduced by the Planning and Compen-sation Act 1991 is commenced at the same time as these amendments by S.I. 1994/3292;

(b) article 14(2) is extended to apply to prior approvals required under the General Permitted Development Order, and any other consent, agreement or approval required by a condition attached to planning consent, the same time limit as applies to determination of a planning application;

(c) article 15 (consultations before grant of planning permission) is amended to require:

(i) the Secretary of State and Scottish Natural Heritage to be consulted about applications for commercial peat extraction;

(ii) the roads authority to be consulted about applications for development involving access to a toll road; and

(iii) the Secretary of State to be consulted about applications for development which may affect the setting of category A listed buildings and scheduled monuments.

Scottish Natural Heritage is substituted for the Nature Conservancy Council for Scotland and the Countryside Commission for Scotland;

(d) article 23 (appeals) is amended to make it clear that appeals provisions apply to decisions on prior approvals required under the General Permitted Development Order.

A number of minor, consequential and technical amendments are also made.

(1)

1972 c. 52; section 21(1) to (3) was substituted by the Planning and Compensation Act 1991 (c. 34) (“the 1991 Act”) Schedule 13, paragraph 5; section 22(1) was amended by the Local Government (Scotland) Act 1973 (c. 65) (“the 1973 Act”), section 172(2) and by the Local Government and Planning (Scotland) Act 1982 (c. 43) (“the 1982 Act”), Schedule 2, paragraph 2; section 24 was substituted by the 1991 Act, section 46(1) and S.I. 1994/3150; section 26(3) was substituted by and section 26(3A) was inserted by the 1991 Act section 46(2); section 28(1) was amended by the 1973 Act, section 172(2) and by the 1982 Act, Schedule 2, paragraph 6, extended by regulation 5(as amended by S.I. 1994/2012) and regulation 10 of S.I. 1988/1221, and amended by the 1991 Act, Schedule 13, paragraph 7; section 32 was extended by the 1973 Act, section 179(1) and section 32(4) was amended by the 1973 Act, section 172(2), by the 1982 Act, Schedule 2, paragraph 10, and Schedule 4, Part I, and by the 1991 Act Schedule 13, paragraph 10; section 33(2) was amended by the 1991 Act Schedule 13, paragraph 11; section 33(5) was amended by the Town and Country Planning (Minerals) Act 1981 (c. 36), Schedule 2, paragraph 3, by the 1982 Act, Schedule 2, paragraph 11(b), by the Housing and Planning Act 1986 (c. 63) (“the 1986 Act”), Schedule 11, paragraph 55, and by the 1991 Act, Schedule 13, paragraph 11; and section 34 was amended by the 1973 Act, section 172(2), by the 1982 Act, Schedule 2, paragraph 12, and by the 1991 Act, section 47(2) and Schedule 13, paragraph 12.

(2)

S.I. 1992/224; amended by S.I. 1992/2083, 1993/1039, and 1994/2585.

(3)

S.I. 1992/223; amended by S.I. 1992/1078 and 2084, 1993/1036 and 1994/1442 and 2586 and as read with Part IV of S.I. 1994/2716.

(4)

1976 c. 66.

(5)

1963 c. 2.

(6)

1991 c. 22.

(7)

1981 c. 69; section 28 was amended by the Wildlife and Countryside (Amendment) Act 1985 (c. 31), section 2, by the Wildlife and Countryside (Service of Notices) Act 1985 (c. 59), section 1(2), by the Norfolk and Suffolk Broads Act 1988 (c. 4), Schedule 3, paragraph 31(1) and by the Planning (Consequential Provisions) Act 1990 (c. 11), Schedule 2, paragraph 54(1).

(8)

O.J. No. L175, 5.7.85 p. 40.