Planning circular 2/2024: non-domestic permitted development rights

Annex I: Agricultural and forestry private ways

The definition of a private way

1. A private way is defined in the Town and Country Planning (General Permitted Development) (Scotland) Order 1992 – also known as “the GPDO” (article 2(1)) as meaning a road or footpath which is not maintainable at the public expense. ‘Road’ in this instance is further defined as having the meaning set out in section 151 of the Roads (Scotland) Act 1984. The definition of a road is;

‘any way (other than a waterway) over which there is a public right of passage (by whatever means) and includes the road's verge, and any bridge (whether permanent or temporary) over which, or tunnel through which, the road passes; and any reference to a road includes a part thereof’.

2. The Town and Country Planning (Scotland) Act 1997 (as amended) defines footpath as having the meaning set out in section 47 of the Countryside (Scotland) Act 1967. The definition is:

‘a way over which the public have the following, but no other, rights of way, that is to say, a right of way on foot with or without a right of way on pedal cycles.’

3. It should also be noted, for clarity, that although private ways are commonly referred to as ‘tracks’ or ‘hilltracks’, these terms are not used in either Class 18 or 22 of the GPDO and have no definition in planning terms.

Permitted Development Rights (PDR) for agricultural and forestry private ways

4. In addition to PDR for agricultural buildings, Class 18 of the GPDO provides PDR for agricultural private ways. These PDR are granted subject to certain criteria and conditions. In summary these are:

• The private way must be on agricultural land,^[34] comprised in an agricultural unit;
• The area of agricultural land must be at least 0.4 hectares;^[35]
• It must be necessary for an agricultural use or purpose which is being carried out on that land;
• Schedule 1 development under the EIA Regulations^[36] is not permitted development. Schedule 2 development does not constitute permitted development unless the planning authority has adopted a screening opinion or the Scottish Ministers issued a screening direction to the effect that EIA is not required;
• No part of the development can be within 25m of the metalled portion of a trunk or classified road;
• Before construction or alteration of a private way, prior notification must be given to the relevant planning authority;
• The development must be carried out in accordance either with the details provided in the prior notification, or where prior approval has been issued in accordance with the details and requirements of that prior approval; and.
• The development must be completed within 3 years of the date on which prior approval is given or, if prior approval is not required, the date on which the information required to be submitted with the prior approval was given to the planning authority.

5. PDR for forestry private ways are set out in Class 22 of the GPDO. PDR is granted subject to certain criteria and conditions. These are very similar to the criteria and conditions that apply to agricultural private ways, although there is no minimum area of land required. Different EIA regulations and procedures apply. Where EIA is required under the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017^[37], the development remains permitted development (i.e. a planning application is not required, but the prior notification/prior approval procedure must still be followed). Consent may be required under those Forestry EIA Regulations.

6. For completeness, the criteria and conditions that apply in respect of PDR to forestry private ways are:

• The private way must be on land used for forestry purposes;
• It must be necessary for a forestry use or purpose (which includes afforestation) which is being carried out on that land;
• No part of the development can be within 25m of the metalled portion of a trunk or classified road;
• Before construction or alteration, prior notification must be given to the relevant planning authority;
• The development must be carried out in accordance either with the details provided in the prior notification, or where prior approval has been issued in accordance with the details and requirements of that prior approval; and
• The development must be completed within 3 years of the date on which prior approval is given or, if prior approval is not required, the date on which the information required to be submitted with the prior approval was given to the planning authority.

7. Additional restrictions may also apply depending on the location of the private way:

• If the developer is proposing to construct a private way for vehicular use (i.e. a road rather than a footpath) and any part of the development falls within a National Scenic Area^[38], permitted development rights do not apply (except for forestry tracks which are part of an approved afforestation scheme);
• Where a development; (a) is likely to have a significant effect on a European site (as defined in The Conservation (Natural Habitats &c.) Regulations 1994^[39]), either alone or in combination with other plans or projects, and (b) is not directly connected with or necessary to the management of the site, a further approval must be obtained under these 1994 Regulations.
• PDR may be restricted or removed by conditions attached to a planning consent or by an Article 4 Direction.

8. It should be noted that, in the case of forestry development, there are PDR for ‘borrow pits’ to be formed on land held or occupied in connection with the forestry land for the purposes of obtaining materials to form the private way. Essentially, this means no further approval is required for operations to obtain the materials required for the work. This applies only to the extraction of materials for forming a private way and not to the extraction of materials for any other operations or works.

9. Private ways for other uses do not meet the criteria for permitted development rights under Classes 18 and 22 of the GPDO. It is for the relevant planning authority to determine which planning procedures apply to any other private ways, however a full planning application would generally be required.

Prior notification/ prior approval for construction or alteration of agricultural or forestry private ways

10. Prior notification/ prior approval is required when a person intends to exercise their PDR to construct or alter a private way for agricultural or forestry uses.

11. Both Classes 18 and 22 of the GPDO set out rights for the ‘formation, alteration or maintenance’ of private ways, however prior notification and approval procedures are only required for the ‘formation or alteration’ of a private way. Prior notification is not required for ‘maintenance’ of agricultural or forestry private ways.

12. The distinction between ‘alteration’ and ‘maintenance’ may sometimes be difficult to determine. ‘Maintenance’ work could include routine repairs to private ways such as filling potholes or clearing drainage channels or replacing culverts in line with recommendations and guidance by Scottish Environment Protection Agency (SEPA) to comply with good practice. Work such as resurfacing to provide a materially different road surface (for example replacing loose gravel with tarmacadam), or to widen or extend a track, would generally be considered an ‘alteration’.

13. Developers and/or landowners are strongly advised to check with the relevant planning authority where they are unsure whether any proposed development is ‘maintenance’ or ‘alteration’ of a private way. Planning authorities should consider setting out in guidance what they consider to be covered by the respective terms.

14. Prior to the formation, or alteration, of agricultural or forestry private ways^[40] the developer or landowner must apply to the relevant planning authority for a decision on whether the prior approval of the planning authority is needed before development begins. This process is known as ‘prior notification’. See Annex A for guidance on prior notification/ prior approval procedure and associated decisions. In this case of prior approval for private ways, the relevant matters to the design, manner of construction or route of the private way.

15. The prior notification must be accompanied by:

• a description of the proposed development, including the proposed design and manner of construction and details of the materials to be used;
• a plan indicating the route of the private way; and
• any fee required to be paid.

16. Development consisting of the formation or alteration of a private way must, except to the extent that the planning authority otherwise agree in writing, be carried out:

(a) to the extent to which prior approval is required, in accordance with the details approved;

(b) to the extent to which prior approval is not required, in accordance with the details submitted with the prior notification.

Development to be carried out within 3 years

17. The proposed development has to be carried out within 3 years of the date on which approval is given. Where the planning authority does not give notification as to whether prior approval is required or not within the 28 day period following submission of the application then the development must be carried out within 3 years from the date the prior notification application was received.

18. Separate arrangements apply to development relating to private ways for any other purposes, including sporting and recreational use. It is for the relevant planning authority to determine which planning procedures apply to any other private ways, however a full planning application would generally be required.

19. Finally, there are opportunities for alignment of planning procedures with other relevant consenting regimes. For forestry private ways, for example, the applicant may decide to align their prior notification/ prior approval application with the forestry approval procedures administered by Scottish Forestry.

20. Prior approval allows the planning authority to consider the proposed design and manner of construction of the private way, the details of the materials to be used and the route, and to request any amendments they consider necessary to these details in the context of its setting. Where amendments are considered necessary it is expected that the planning authority will require that the private way is constructed or altered in accordance with the amended details that they approve. For forestry private ways, as a matter of good practice the PA should consider consulting Scottish Forestry and take any comments or views expressed by Scottish Forestry into account.

21. Provided all other relevant GPDO requirements, including the necessity for, and use of, the track for agricultural or forestry purposes, are met, the principle of whether the development should be permitted need not be considered since this has already been established

Alignment with existing procedures

22. There are opportunities for aligning planning procedures with other relevant consenting regimes. This is especially true in relation to forestry private ways where there are existing and long-established statutory consultation procedures for forestry projects, including tracks, as well as the Forestry (Environmental Impact Assessment) (Scotland) Regulations 2017 which cover amongst other things, forestry roads, tracks, quarries and borrow-pits.

23. Accordingly, where an applicant so wishes, prior notification for forestry private ways should be considered by the relevant planning authority alongside Scottish Forestry decisions on EIA determinations or consent, as well as approval of Forest Plans, Felling Licences or Woodland Creation applications.

24. In most circumstances, it is expected that where the planning authority are satisfied that sufficient information is supplied through the aligned notification process, further information would not be required and the need for prior approval would be minimised.

25. For those applications where the planning authority is of the view that prior approval may be required, consultation between the planning authority, Scottish Forestry and the applicant at an early stage (i.e. prior to the formal decision as to whether or not prior approval is necessary) should be considered. Screening and scoping of substantial forestry projects is routine between applicants, Scottish Forestry and other statutory consultees, including planning authorities, and, as such, provides a good opportunity for initial discussion.

26. Long-term conservation objectives will often be served best by ensuring that farming and forestry are able to function successfully. Therefore, in operating the controls, planning authorities should always have full regard to the operational needs of the farming and forestry industries; to the need to avoid imposing any unnecessary or excessively costly requirements; and to the normal considerations of reasonableness. However, they will also need to consider the visual effect of the development on the landscape and the desirability of preserving ancient monuments and their settings, known archaeological sites, the settings of listed buildings, and sites of recognised or designated nature conservation value.

Alignment of planning and forestry procedures

27. For forestry private ways, the applicant may decide to align their prior notification application with the forestry approval procedures administered by Scottish Forestry for Forest Plans, felling licences, EIA Forestry determinations, and woodland creation projects. Further information along with more detailed guidance on how this can be undertaken can be obtained from Scottish Forestry.

28. Aligning processes provides opportunity for more efficient handling of applications and reduces the need for duplication of information. Planning authorities may use the forestry approval procedures, on which they are routinely consulted by Scottish Forestry, to better understand the forestry context and purpose of the activities proposed, as well as the standards required for Scottish Forestry approval. In this way authorities can seek to minimise the need for further formal scrutiny and prior approval processes.

29. Aligning processes does not however remove the need to comply with the legal requirements to submit a prior notification and to obtain either prior approval, or the planning authority’s agreement that prior approval is not required.

Enforcement

30. If a private way, or an alteration to an existing private way, is proposed as being for an agricultural or forestry use, but this turns out not to be the case, then enforcement action may be taken.