Town and Country Planning (Scotland) Act 1997

26 Meaning of “development”. S

(1) Subject to the following provisions of this section [F1 and to section 26AB], in this Act, except where the context otherwise requires, “development” means the carrying out of building, engineering, mining or other operations in, on, over or under land, or the making of any material change in the use of any buildings or other land[F2 , or the operation of a marine fish farm in the circumstances specified in section 26AA].

(2) The following operations or uses of land shall not be taken for the purposes of this Act to involve development of the land—

(a) the carrying out of works for the maintenance, improvement or other alteration of any building being works which—

(i) affect only the interior of the building, or

(ii) do not materially affect the external appearance of the building,

and are not works for making good war damage within the meaning of the M1 War Damage Act 1943 or works begun after 7th December, 1969 for the alteration of a building by providing additional space in it underground;

(b) the carrying out by a [F3 roads authority (as defined by section 151(1) of the Roads (Scotland) Act 1984)] on land within the boundaries of a road of any works required for the maintenance or improvement of the road [F4 but , in the case of any such works which are not exclusively for the maintenance of the road, not including any works which may have significant adverse effects on the environment];

(c) the carrying out by a local authority or statutory undertakers of any works for the purpose of inspecting, repairing or renewing any sewers, mains, pipes, cables or other apparatus, including the breaking open of any road or other land for that purpose;

(d) the use of any buildings or other land within the curtilage of a dwellinghouse for any purpose incidental to the enjoyment of the dwellinghouse as such;

(e) [F5 subject to subsection (2A),] the use of any land for the purposes of agriculture or forestry (including afforestation) and the use for any of those purposes of any building occupied together with land so used;

(f) in the case of buildings or other land which are used for a purpose of any class specified in an order made by the Secretary of State under this section, the use of the buildings or other land or, subject to the provisions of the order, of any part of the buildings or the other land, for any other purpose of the same class;

(g) the demolition of any description of building specified in a direction given by the Secretary of State to planning authorities generally or to a particular planning authority.

[F6 (2AA) The Scottish Ministers may in a development order specify any circumstances, or description of circumstances, in which subsection (2) does not apply to operations mentioned in paragraph (a) of that subsection which have the effect of increasing the gross floor space of the building by such amount or percentage as is so specified.

(2AB) The development order may make different provision for different purposes.]

[F7 (2A) Development includes the carrying out of F8 ... drainage for agriculture or of any other water management project for that purpose [F9 , but does not include the carrying out of irrigation work ].]

(3) For the avoidance of doubt it is hereby declared that for the purposes of this section—

(a) the use as two or more separate dwellinghouses of any building previously used as a single dwellinghouse involves a material change in the use of the building and of each part of it which is so used;

(b) the deposit of refuse or waste materials on land involves a material change in its use, notwithstanding that the land is comprised in a site already used for that purpose, if—

(i) the superficial area of the deposit is extended, or

(ii) the height of the deposit is extended and exceeds the level of the land adjoining the site.

(4) For the purposes of this Act building operations include—

(a) demolition of buildings,

(b) rebuilding,

(c) structural alterations of or additions to buildings, and

(d) other operations normally undertaken by a person carrying on business as a builder.

(5) For the purposes of this Act mining operations include—

(a) the removal of material of any description—

(i) from a mineral-working deposit,

(ii) from a deposit of pulverised fuel ash or other furnace ash or clinker, or

(iii) from a deposit of iron, steel or other metallic slags, and

(b) the extraction of minerals from a disused railway embankment.

(6) Where the placing or assembly of any [F10 equipment] in any part of any [F11 waters which—

(a) are inland waters,

(b) not being inland waters, are landward of the baselines from which the breadth of the territorial sea adjacent to Scotland is measured, or

(c) are seaward of those baselines up to a distance of 12 nautical miles,]

for the purpose of fish farming there would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the [F10 equipment] resulted from carrying out engineering operations over that land; and in this [F12 section]—

• F13 ...

• [F14 “ equipment” includes any tank, cage or other structure, or long-line, for use in fish farming;]

• “fish farming” means the breeding, rearing or keeping of fish or shellfish (which includes any kind of [F15 sea urchin,] crustacean or mollusc);

• “inland waters” means waters which do not form part of the sea or of any creek, bay or estuary or of any river as far as the tide flows; and

• F16 ...

• F13 ...

• [F17 “nautical miles ” means international nautical miles of 1,852 metres]

[F18 (6AA) Where the making of any material change in the use of equipment so placed or assembled for that purpose would not, apart from this subsection, involve development of the land below, this Act shall have effect as if the making of any such material change was development of that land.]

[F19 (6A) The Scottish Ministers may by order made by statutory instrument make such modifications as they consider necessary or expedient to the definitions of “equipment” and “fish farming” in subsection (6); and an order under this subsection may make different provision for different purposes and different areas.

(6B) In subsection (6A), “ modifications ” includes amendments and repeals. ]

[F20 (6C) The Scottish Ministers may by order make such provision as they consider necessary or expedient for the purpose of, or in connection with, the application of this Act to—

(a) any such placing or assembly as is mentioned in subsection (6) in waters described in paragraph (b) or (c) of that subsection; or

(b) any material change in the use of equipment placed or assembled in those waters.

(6D) Any order under subsection (6C) may in particular provide that a planning authority specified in the order is to be the planning authority for the purposes of such an application of this Act despite the placing or assembly being something done, or the material change of use being made, outwith the district of the authority.

(6E) But in the application of subsections (6C) and (6D) to a case where, by virtue of paragraph (a) of section 10(1) of the National Parks (Scotland) Act 2000 (asp 10) the planning authority is a National Park authority, the reference in subsection (6D) to the district of the authority is to be construed as a reference to the National Park.

(6F) And the Scottish Ministers may direct that subsections (6C) and (6D) are to apply to a case where—

(a) by virtue of paragraph (b) of that section 10(1), a National Park authority is to be treated as the planning authority, or

(b) by virtue of paragraph (c) of that section 10(1), a National Park authority is to have certain functions in relation to planning.

(6G) For the purposes of any such application as is provided for in—

(a) paragraph (a) of subsection (6F), the reference in subsection (6D) to the district of the authority is to be construed as mentioned in subsection (6E) and for the words “planning authority specified in the order is to be” in subsection (6D) there is to be substituted “ National Park authority specified in the order is to be treated as ” ,

(b) paragraph (b) of subsection (6F), the reference in subsection (6D) to the district of the authority is to be construed as mentioned in subsection (6E) and for the words “planning authority specified in the order is to be the planning authority” in subsection (6D) there is to be substituted “ National Park authority specified in the order is to have functions in relation to planning ” .

(6H) Before making an order under subsection (6C), the Scottish Ministers—

(a) must consult—

(i) every planning authority, and

(ii) the Scottish Environment Protection Agency, and

(b) may consult such other persons as they think fit.

(6I) An order under subsection (6C) may (without prejudice to the generality of that subsection)—

(a) modify any enactment, instrument or document,

(b) make such incidental, supplemental, consequential, transitional, transitory or saving provision as the Scottish Ministers think necessary or expedient,

(c) provide for the delegation of functions,

(d) make different provision for different purposes and different areas.

(6J) For the purposes of the exercise by a National Park authority of any planning functions which it has by virtue of subsections (6C) and (6D) in respect of waters described in paragraph (b) or (c) of subsection (6), any reference in section 9 of the National Parks (Scotland) Act 2000 (asp 10) (general purposes and functions of National Park authority) to the National Park itself is to be construed as including a reference to those waters.]

(7) Without prejudice to any regulations under this Act relating to the control of advertisements, the use for the display of advertisements of any external part of a building which is not normally used for that purpose shall be treated for the purposes of this section as involving a material change in the use of that part of the building.

Textual Amendments

F1 Words in s. 26(1) inserted (6.4.2011) by Marine (Scotland) Act 2010 (asp 5), ss. 63(2), 168(1) (with s. 162); S.S.I. 2011/58, art. 3(a)

F2 Words in s. 26(1) added (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(a), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F3 Words in s. 26(2)(b) substituted (12.6.2006) by Planning and Compulsory Purchase Act 2004 (c. 5), s. 121(4), Sch. 7 para. 20(2) (with s. 111); S.S.I. 2006/268, art. 3(d)

F4 Words in s 26(2)(b) inserted (1.8.1999) by S.S.I. 1999/1, reg. 47

F5 Words in s. 26(2)(e) inserted (30.9.2003) by Environmental Impact Assessment (Water Management) (Scotland) Regulations 2003 (S.S.I. 2003/341), regs. 1, 2(a) (with reg. 5)

F6 S. 26(2AA)(2AB) inserted (6.2.2007 for specified purposes, 12.12.2008 for specified purposes) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(b), 59(2) (with s. 3(2)(3)); S.S.I. 2007/49, art. 2, sch., S.S.I. 2008/411, art. 2(2)(3)(a)

F7 S. 26(2A) inserted (30.9.2003) by Environmental Impact Assessment (Water Management) (Scotland) Regulations 2003 (S.S.I. 2003/341), regs. 1, 2(b) (with reg. 5)

F8 Words in s. 26(2A) omitted (31.3.2011) by virtue of The Water Environment (Controlled Activities) (Scotland) Regulations 2011 (S.S.I. 2011/209), reg. 1(2), sch. 11 para. 1(a) (with reg. 54, sch. 11 para. 5)

F9 Words in s. 26(2A) inserted (31.3.2011) by The Water Environment (Controlled Activities) (Scotland) Regulations 2011 (S.S.I. 2011/209), reg. 1(2), sch. 11 para. 1(b) (with reg. 54, sch. 11 para. 5)

F10 Word in s. 26(6) substituted (6.2.2007 for specified purposes, 31.3.2007 in so far as not already in force) by Water Environment and Water Services (Scotland) Act 2003 (asp 3), ss. 24(2)(a)(i), 38(1); S.S.I. 2007/50, art. 2

F11 Words in s. 26(6) substituted (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(c)(i), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F12 Word in s. 26(6) substituted (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(c)(ii), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F13 Words in s. 26(6) repealed (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in forc) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(c)(iii), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F14 Words in s. 26(6) inserted (6.2.2007 for specified purposes, 31.3.2007 in so far as not already in force) by Water Environment and Water Services (Scotland) Act 2003 (asp 3), ss. 24(2)(a)(iii), 38(1); S.S.I. 2007/50, art. 2

F15 Words in s. 26(6) inserted (1.4.2007) by Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 (S.S.I. 2007/268), arts. 1(1), 8(2) (with art. 14(3))

F16 Words in s. 26(6) repealed (6.2.2007 for specified purposes, 31.3.2007 in so far as not already in force) by Water Environment and Water Services (Scotland) Act 2003 (asp 3), ss. 24(2)(a)(iv), 38(1); S.S.I. 2007/50, art. 2

F17 Words in s. 26(6) added (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(c)(iv), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F18 S. 26(6AA) inserted (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(d), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

F19 S. 26(6A)(6B) inserted (6.2.2007 for specified purposes, 31.3.2007 in so far as not already in force) by Water Environment and Water Services (Scotland) Act 2003 (asp 3), ss. 24(2)(b), 38(1); S.S.I. 2007/50, art. 2

F20 S. 26(6C)-(6J) inserted (6.2.2007 for specified purposes, 1.4.2007 in so far as not already in force) by Planning etc. (Scotland) Act 2006 (asp 17), ss. 3(1)(e), 59(2); S.S.I. 2007/49, art. 2, sch., S.S.I. 2007/139, art. 2, sch.

Modifications etc. (not altering text)

C1 S. 26(1) extended (1.8.1999) by S.S.I. 1999/1, reg. 44

C2 S. 26(1) applied (with modifications) (1.4.2007) by Town and Country Planning (Marine Fish Farming) (Scotland) Order 2007 (S.S.I. 2007/268), arts. 1(1), 14(2) (with art. 14(3))

Marginal Citations

M1 1943 c. 21.